Slurpr! Slurpr! For Fun Legal Questions, It's A Wonderful Toy.

Numerous websites that follow wireless news have reported about a new wireless box called Slurpr, which allows someone to aggregate up to six open wifi access points at once. In just about the next sentence, of each of these reports warns of the potential legal consequences of “stealing wifi” by using an open network that the operator does not intend for open use. Or, as Glenn Fleishman put it: “This might get you arrested six times in one day.”

But will it? And, perhaps more importantly, should it? With the rise of applications like FON, wifi enabled phones, and now the introduction of Slurpr, we need to get this issue resolved sooner rather than later. Otherwise, we can expect to see more arrests of folks unaware they are committing a crime and another equipment/application industry killed off by regulatory uncertainty.

As I have argued before, it makes much better legal and policy sense to require access point operators (and the equipment manufacturers who set the defaults) responsible for their own equipment and require them to close a network rather than to require the public to treat all open networks as off limits unless the operator somehow expressly tells the user it’s o.k. Why shouldn’t the act of blasting an open network into a publicly accessible place or onto someone else’s property be sufficient invitation to use the network, especially when it would encourage people to set power levels to appropriate levels and stop imposing interference costs on the rest of us? Why on Earth do we want a legal presumption that imposes obligations on the broader public instead of the operator, makes it much harder for people that actively want to share their networks, and encourages (rather than discourages) interference problems and poor spectrum management? Most especially, why do we do this when creating this presumption actually flies in the face of the usual legal presumptions about intrusions of private property into the public sphere?

The only answer I can come up with is that network technologies appears to have the amazing power of turning certain people’s brains into pudding and making them forget about 10,000 years of human experience of living in urban environments. For further elaboration on these themes, see below . . .

CNET carried this story recently of a Michigane man threatened with “computer trespass” for using an open access point at a local coffee shop because he used the access point from the sidewalk rather than going in and buying coffee.

I can’t help but wonder if the same zealous prosecutor could also charge him with theft for smelling the coffee as he walked by, like the old folk tale of the baker who tried to charge the beggar for the smell of the bread. The fact that this happened in a public space, when cities such as DC and NYC, working with civic minded organizations like NYC Wireless and the Open Park Project want to make public access points avaialable, even ubiquitous. Why should the average fellow, finding an open network in a public place, assume that it belongs to an irresponsible business that wants to remain closed rather than to someone who wants to provide an open access point for fun or profit (or, dare I say, for the FON of it)? Does the law really put the burden on those who want to provide open access points to somehow signal their intent? Does the law really everyone not merely to assume the user of a wireless router can be as loud, irresponsible and intrusive as power permits — but that the law actively encourages such behhavior by threatening me with jail time for presuming that someone blasting an open access point actually meant to make it open?

As I have observed in the past, equating the use of an open access point with “stealing” something makes a lot of unwarranted asusmptions, incents bad behavior, and runs contrary to the usual legal presumptions on the use of one’s private property when it intrudes into the property of another or into the public sphere. If my neighbor jacks up his sprinkler and waters my lawn, I don’t pay him for the water — and can even sue if the non-stop overwatering kills my begonias and drips into my basement. If my neighbor’s apple tree extends over my yard, I can pick the fruit that extends into my yard or even trim back the tree to my property line. Furthermore, I know a fair number of people who actively want to share their wifi connections — either for money or for more socially conscious reasons. So if my neighbor blasts his wireless radio into my house or public space, why should the law (a) require me to assume he is doing it by accident rather than because he actively wants to share his connection — particularly when there is no efficient way to signal “I want to share” beyond keeping it open); and, (b) why should the law decide to protect both my neighbor’s technical cluelessness and the decision of the manufacturer to set the default on “open” — imposing cost on my use of my own network by creating needless interference and confusion for my machine — when plenty of legal precedent says it is my neighbor’s responsibility to behave himself or suffer the consequences of intruding on my space.

I suppose one could argue that my clueless neighbor and thoughtless manufacturer are not really the victims. Instead, the victim is the innocent cable or telco provider on whose network I am “trespassing.” The problem with this approach is, again, that I am not (as far as I know) trespassing. Indeed, I have every reason to believe that the person providing the open access point wants me to use it. While this may create some problem with his or her provider if the user agreement prohibits sharing, that’s not my problem. We don’t claim I am “stealing cable” when I watch ESPN at the local bar, although the bar owner might get in trouble if he or she hasn’t paid for commercial/public display rights. I am not “pirating music” when my neighbor blasts his CDs at a party, even if I enjoy the music (although I would not put it past the RIAA to try to collect from me).

O.K., but what about Slurpr? That’s not just casually taking the benefit of something there. That’s me taking an active step to seek out open networks and leverage them to my advantage?

But does the fact of trying maximize my benefit from public access points change the calculus any? The presumption in law is, generally, no. I can rent out my driveway for parking if I live close to the local baseball stadium or football field, even if I am “depriving the team owner of parking revenue.” It’s my driveway and I can take advantage of it however I want, even if someone else is drawing the crowd and creating the need. If it is legal (as I posit) to use an open access point, then trying to maximize my use of it makes no difference.

Mind you, this applies to open access points. WEP cracking (a feature apparently under contemplation for the next generation of Slurpr) presents a whole ‘nother issue. Someone operating a secure network has clearly signalled they don’t want others using it. You might have a good case against them to adjust their power level if it intrudes on your property, like asking your neighbor to turn down the volume on music spilling into your apartment or telling a neighbor to keep sprinkler run off out of your yard. But just as I don’t have the right to go into my neighbor’s yard and move his sprinkler so that it hits my parched begonias after I think the roses have had enough, I don’t have the right to crack a closed network even if it is intruding. I have other means to deal with the nuisance (if I feel so inclined), but this sort of “self-help” should not be one of them.

In the end, I have to ask what is it about technology that makes people act like idiots and forget about 10,000 years of law and practical experience on living together in urban areas? No one thinks it’s a virtuous thing to test people’s locks by battering their door down then spray painting on their living room floor “if you don’t want people breaking in, get a better door.” But we can find plenty of self-proclaimed crackers arguing that breaking other people’s security is a valuable public service by getting them to do a better job. We don’t let bakers charge passers by for the smell of the bread, or arrest you for stealing because you read the displayed front page of a newspaper without buying the whole thing. But the folks in Michigan have no problem arresting a man for using an open access point available in a public space. Adjusting to open wireless networks shouldn’t cause us any more headaches than the introduction of the sprinkler or the stereo or other technologies that extend someone’s private propertry into the public space or into a neighbor’s home. And yet, because it’s “cyberspace,” people’s brains just stop working.

Stay tuned . . . .