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Opaque Wi-Fi laws 'damage UK economy, social inclusion'

Academic frowns on fudged sharing regulations

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Laws controlling the sharing of wireless internet access are hindering the digital economy and the digital social inclusion plans of Government, an academic has warned. The law should be clarified to help spread broadband access more widely, he said.

University of East Anglia IT and internet law lecturer Daithí Mac Síthigh has published a study of the law surrounding wireless networks and has concluded that legislation unnecessarily restricts the benefits to society that wireless networks could bring.

“Digital inclusion is a government policy and rightly so. People may not have broadband in every road, particularly in rural or isolated areas, and costs of a good connection remain high, so sharing internet access is recognised as a great way of filling in the gaps,” said Mac Síthigh. “Shared internet access has potential social benefits, but it’s harder to encourage people to take part if the legalities are unclear," he said.

Wireless networks are increasingly common as more homes and businesses use wireless routers. Many networks are unsecured, either because the users have not changed default settings or because they have consciously left them open for use by others.

Networks are also being used more intensively by consumers with the advent of smartphones such as the iPhone which pick up on open networks and use them.

The legal implications of leaving a wireless network open to third parties, though, are not fully clear.

Mac Síthigh has examined the law in the UK and found that it creates uncertainty. Using a shared network is neither definitely legal or definitely illegal.

"The question here is whether use of the Internet through an open access point is a criminal offence. Our starting point is section 125 of the Communications Act 2003, which provides that: 'A person who- (a) dishonestly obtains an electronic communications service [ECS], and (b) does so with intent to avoid payment of a charge applicable to the provision of that service, is guilty of an offence'," he wrote in an article in SRIPTed, the record of a conference at Edinburgh University.

"The conviction of Gregory Straszkiewicz is an example of the successful use of section 125, and a number of published reports indicate that arrests have been made and cautions issued with reference to the same section," wrote Mac Síthigh. "In other cases, however, it is not clear what the alleged offence was."

"As WAP (wireless access point) admins are not known or expected to 'charge' for the use of their networks, it can only be concluded that the offence is not access to the WAP or the home network, but use of the internet connection (i.e. access to the wider network), therefore evading the 'charge' that the ISP would normally require for connection," he said. "This is still an unusual approach and one that would seem to owe more to a theoretical analysis of market conditions (would the user have entered into a contract with the ISP for a subscription were it not for the free alternative?) rather than the enforcement of the criminal law."

"The reasonable approach would be to say that the Communications Act does not catch this type of behaviour as there is no intent to avoid a (non-existent) charge," he wrote. "However, in the absence of proper consideration by a court, the uncertainty persists."

Mac Síthigh argued in his paper that such legal uncertainty threatens not just the ability of commercial organisations to use free Wi-Fi to attract customers, but local authorities' ability to offer access to people who otherwise might not have it.

"Inappropriate legal constraints on or actions against WAP admins, Wi-Fi users or public authorities acting in the best traditions of the local library or park … are a clear and present threat to this model," he wrote.

Mac Síthigh said that the laws were written for an earlier age. "Malicious hacking and phone fraud should of course continue to be crimes but if Wi-Fi sharing is to be encouraged and properly regulated this is an inappropriate use of the law."

“Many people may be technically breaking the law and would not agree that using an open network should be a criminal offence, and although it's unlikely widespread prosecutions will take place, currently many ISPs restrict your ability to share via their terms and conditions of service," said Mac Síthigh. "If you’ve done something to breach these terms it may have consequences further down the line and could be used against you.”

See: The paper

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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