Quote:
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.
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Considering what's been
ruled as "implied consent" in other situations, I'd feel comfortable going ahead with "it was available and the owner took no measures to stop this, ergo, consent is obvious" as a defense.
That doesn't allow for hacking; even a default password indicates a level of interest in keeping unwanted users out. But a totally-open network--which doesn't happen by accident--implies a willingness to have people connect to it without asking first.
Somehow, though, I don't think anyone's going to get busted for using a Kindle at a free wifi spot, authorized or not; it's the people doing filesharing and mega-sized uploads/downloads that are a drain on those systems, and the people doing porn exchanges that cause TOS issues for the wifi owners. Nobody cares if someone's visiting Wikipedia on their bandwidth.