[devilsadvocate]

Originally Posted by Harmon

Speaking as a US lawyer, my "curbstone opinion" is that this law does not cover what we are talking about here, which I understand to be "unauthorized access to an unprotected wireless network for non-criminal purposes." But a little bit of net surfing should convince most people that there are plenty of states with laws that do cover it. It has convinced me, at any rate.

A network is defined as 2 (or more) devices connected to each other, be it by copper, fiber, or a wireless signal. In order to join a network, you must by definition access at least one other device. At that point, you're violating the cited code, aren't you?

Originally Posted by Harmon

The legal question at the bottom is whether maintaining a completely open network amounts to "implied consent" by the network owner to the free use of the network. I would certainly look into raising that as a defense if I had a client charged with a criminal violation based on nothing more than hopping on an open network. Depending on the exact facts, that might be successful, but based on my sense of the general drift of the law, it's not the way to bet.

That defense would hinge on whether the network provider intentionally left it open. If the defense could show a history of the network provider intentionally providing free network access (e.g. advertising free WiFi, prior verbal agreements with others etc) then that argument would hold water. If not, (a)(2)(C) says,

"...intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer..."

I've been a network admin, and if someone accesses a network, there will be a virtual paper-trail (unless of course said access was deliberately obfuscated, which is a different matter entirely) and on some level it can be argued that information was taken; whether the information was of any use (or the network trespasser knew about it) is irrelevant. History & the courts have not been kind to those who get caught, unless you're talking about Kevin Mittnick.

On top of everything else, there's the matter of theft-of-services, i.e. illegally obtaining internet access without permission. The owner of the access-point might not legally pursue it but I could think of a few large American ISPs who would.

Originally Posted by Harmon

The truth is, most people who do this won't get caught, and those that do probably won't be prosecuted without there being some other factor involved.

Yes, and it's unfortunate. People are slowly learning however.

Originally Posted by Harmon

My personal opinion is that if the network is completely open, anyone should be able to use it so long as it's just being used as a portal to the internet. But in general, that does not seem to be the law.

I sincerely hope you don't apply that line of thinking to your home internet, or one day it might be you who needs to retain counsel. It amazes me how many people think "I have nothing to worry about, no one would bother with my wireless", or "they'll get in anyway, why bother". Network hackers prey on those people first: The ones who leave the default password, don't enable encryption, etc. While it's true that the only safe computer is the one locked in a vault and not plugged in, WPA2 encryption with a nice strong passphrase will keep a hacker busy for a few decades.