19 December 2005

Wireless Internet Signal Poaching.

Wireless internet signal poaching means accessing the Internet through someone else’s wireless broadband server. It is one of the many ethical gray areas of the modern technology and intellectual property world.

Is it wrong? Usually, poaching doesn’t hurt the intended beneficiary of the Wi-Fi server at all, and usually, it doesn’t provide access to the intended user’s private files, as most poachers aren’t that sophisticated and lack the motive to do so. At its worst, poaching may reduce the speed of the connection somewhat.

Also, even if it is wrong, should the law intervene to stop it? Stopping someone from poaching your wireless broadband server is an easy thing to do. Assign a password (the password option comes standard with almost all servers, although many people aren’t bothered to figure it out), and all but the most determined people are going to stop using it. At that point, moreover, someone who hacks the password has, in essence, perpetrated a fraud to gain access to the service, and fraud is something we understand. Why allow legal intervention when self-help works better.

Of course, the harder question is the case where a password isn’t workable. A café with free Wi-Fi reduces customer service if it requires a password, and has to change passwords frantically for the disclosure of a password once to not make that password available to the general public. The Wi-Fi provider café may not appreciate providing service to all of its competitors nearby.

But, the solution that has been devised to this problem in most places where it is a problem is instructive. Denver’s Cherry Creek North shopping area is full of cafés and other businesses that might be inclined to offer free Wi-Fi. Rather than trying to implement an honor code or password system, however, the entire business improvement district are the neighborhood simply chose to chip in and provide Wi-Fi to the entire neighborhood. Everyone benefits, everyone pays.

Another solution is the Starbucks solution. Starbucks doesn’t provide free Wi-Fi. But, it does have a subscription Wi-Fi service for which customers can pay and receive a user name and password particular to them. And, since the customer can use it at thousands of locations across the nation, this may be worth it to the subscriber.

So far, however, I know of no lawsuit brought or crimes prosecuted alleging wireless Internet poaching in cases where there is no password protection, and think that there is good reason not to allow such suits.

As in most cases of “intellectual property” infringement, the real issue is not that the poacher deprives someone of something, but that they are unjustly enriched by using it – they get something for nothing, while someone else pays. The failure of early intellectual property lawyers to conceptualize the issue this way may be, as much as anything, a product of the Anglo-American legal system (which has exerted a strong influence on international intellectual property standards, despite the fact that most countries have legal systems based on those of France and Germany called the Civil Law system). Historically, Anglo-American law recognized legal rights arising out of either contract (i.e. an agreement between two people), property rights, or torts (i.e. civil wrongs arising out of one’s general obligations to the world, like a duty to use reasonable care not to injure others). The law of unjust enrichment in the United States (related areas are the law of restitution and the law of “quasi-contract”, quantum meriut or promissory estoppel), is comparatively in its infancy. Unjust enrichment wasn’t a standard part of the law school curriculum until at least the 1960s.

In the European context, the classic example from which it was drawn was someone who intervened without being asked to tend an absent Roman farmer’s estate when he was called off to war and wanted compensation afterwards. Classic scenarios in American law dealt with in this way include the obligation to return deposits accidentally made to your bank account, and to pay for having your house painted when the painter accidentally paints your house rather than the house of the man who paid him to paint his house, and you don’t appraise the painter of his mistake.

Unjust enrichment and property rights concepts lead naturally to very different approaches. In an unjust enrichment case, the sole remedy is usually a civil suit for damages and the measure of damages is typically what it would have cost that person to receive the benefit. Thus, poaching wireless internet service for a month might give rise to a $50 civil suit, and copying a CD illegally might give rise to a $15 suit. Generally speaking, American law has allowed neither attorneys’ fees nor punitive damages in unjust enrichment suits.

In contrast, breaching someone else’s property rights is usually criminal or quasi-criminal. Hence, using someone else’s intellectual property without permission, trespassing on their land, or using their car without their permission can all typically land you in jail, even if there are no passwords or fences to stop you, and in the case of the car, even in the case where the car is unlocked and the keys are in the ignition. (Another of the important places this distinction plays out in law is the distinction between people who owe you a fiduciary duty to protect your property, and people who have only a contractual duty to repay you. You bank has not committed a crime when it refuses to pay you the money it owes you for the bank deposits you have made, but you broker has committed a crime when he refuses to turn over the stocks in your brokerage account.)

In the case of poaching, if someone else’s Wi-Fi band is their property, then you are trespassing when you use it, and that is a crime. But, there is nothing obvious about this fact pattern that tells us if it makes sense to call it a property right or not. My view is that there isn’t a platonically right answer, and that, instead, we should look to which regime makes the most sense and produces the most pleasing results. Most of the time, in the case of modern intellectual property right issues and related issues like Internet poaching, our moral intuition about the severity of the offense is best matched by an unjust enrichment model, and there may be prudential reasons to disallow any suits at all, because self-help provides a better solution.


Andrew Oh-Willeke said...

More analysis of the signal poaching issue can be found here.

Andrew Oh-Willeke said...

I know of one example of an arrest for signal poaching. PC World discusses the issue here. The term was allegedly coined by the author of this article in PC Magazine whose blog is the first comment in this post. This link restates the contractual but unenforceable ban on bandwidth sharing and the risks associated with anonymity via wi-fi links (which I am aware that some people use for precisely that purpose). About.com notes a UK signal poaching arrest.

Anonymous said...

Poaching the property of some for the benefit of others is nothing new. Some of my income is taken to pay for foodshare, for an example.