[Harmon]

Originally Posted by devilsadvocate

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?

I don't think so. While your logic is correct, the way I read the section, it's not aimed at merely accessing a computer. There has to be some fraudulent activity above & beyond that, or some actual damage somewhere. It appears to me that the perp has to, at a minimum, consciously acquire useable knowledge of some kind, not merely use the technological knowledge embedded in the system in order to get on the internet.

Remember, we are talking about a particular statute right now. Some other statute might address the point you are making. This one doesn't, in my view, which involves a certain degree of knowledge about how to read a statute. It's not as easy or straightforward as it might seem. There are all sorts of rules about inferences, and purposes, that come to bear on what a statute really means.

For example, your logical point is correct when applied to certain government computers, because the statute does address that situation. But for purposes of statutory construction, this strongly implies that your logical point is incorrect concerning non-government computers.

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..."

Most of what you've identified would prove actual consent. Implied consent might - and I do say might - rest on something as flimsy as the failure of the access point owner to take normal precautions to keep people out.

A somewhat imperfect analogy would be to your front lawn. Technically, anyone who cuts across it without your permission is trespassing. But unless you have a fence up, or a sign, the lack of those things implies consent to have people step on to it to retrieve a ball, or chase a dog, or take a shortcut.

In the case of a shortcut, if you let a path appear in the lawn where people have been cutting across, the existence of the path is implied consent. If you let the path stay there for a set number of years, you actually lose the right to stop people from using it. This is called granting an easement. In this situation, you have moved from implied consent to making your consent irrelevant. Oddly, if you put up a sign saying you grant your consent, that prevents anyone from claiming that you have granted an easement.

Lawyers usually say that their final opinion would depend on "all the facts and circumstances" of a case, and that in turn depends on what facts & circumstances you can persuade a court are relevant to the defense. I would not want to rely on a defense of implied consent, but if that's all I had to go with, it would be worth trying - depending on exactly how much of a downside losing would have. Sometimes it's better to cop a plea, and work on getting the record expunged a year or two later.

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.

No, the courts will be looking for more than that under the federal statute. This is something I know in the same way that you know stuff about how networks behave. It's kind of like knowing a language as a native speaker, compared to learning it later in life. You instinctively know how the language works. Same with a lawyer reading a statute.

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.

Yep. That would depend on state law. But the main problem in that scenario would be showing criminal intent. It would be virtually impossible to do if there was any evidence of implied permission from the access owner. There might be some room for a civil lawsuit, though.

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.

Don't worry! I have WPA2 and a password that ranks pretty strong.