Using Kindle WI-FI could get YOU Arrested!

[HarryT]

We are perhaps getting a little side-tracked from the original claim of this thread, which is that "using Kindle Wi-Fi can get you arrested".

That really is a somewhat dubious claim. The Kindle's WiFi can no more get you arrested than the WiFi on your smartphone, laptop, or any other WiFi-enabled device. It will not connect to any private WiFi network unless you tell it to do so.

[TheJohnNewton]

I guess I haven't been paying attention to the law in the US. Many years ago when wireless started appearing in homes in the US there were people who would purposely not protect their wifi in the spirit of sharing, there were sites that would list all open networks so people could find access. My understanding at the time was if it's open and you only use it to access the internet it was fine. It was only a crime it you used it to access other peoples computers. I guess the laws have changed or I misunderstood them before. It makes me wonder what happened to the "Open network" movement from years past.

[devilsadvocate]

Originally Posted by TheJohnNewton

I guess I haven't been paying attention to the law in the US. Many years ago when wireless started appearing in homes in the US there were people who would purposely not protect their wifi in the spirit of sharing, there were sites that would list all open networks so people could find access. My understanding at the time was if it's open and you only use it to access the internet it was fine. It was only a crime it you used it to access other peoples computers. I guess the laws have changed or I misunderstood them before. It makes me wonder what happened to the "Open network" movement from years past.

Evolution, primarily.

Now we do almost everything online and personally-identifiable information has value to others (at our expense). Many people store their entire lives on their machines. Even if the only access is to the router/gateway, a criminal can use it as a proxy IP to do all sorts of wonderful things and leave the account holder to possibly take responsibility for crimes he/she didn't commit.

[trekchick]

Originally Posted by Kumabjorn

@Harmon
So what you are saying is that there is a huge discrepancy between the letter of the law and how it is practiced in the real world?

IANAL only a simple law-abiding citizen, I would imagine that people's respect for the law will become "hollowed out" when the law says one thing and court decisions something else.

I think that discrepancies occur between jurisdictions and whether the person is charged with violating federal or state laws. In the US, only a few states define computer trespass and/or unauthorized use, and older laws don't always apply neatly, especially when actual damages are difficult or even impossible to quantify. So the same act could be prosecuted under different laws in Kentucky than in Florida, and the penalties may be excessive in one state and too lenient in another.

[Harmon]

Originally Posted by Kumabjorn

@Harmon
So what you are saying is that there is a huge discrepancy between the letter of the law and how it is practiced in the real world?

IANAL only a simple law-abiding citizen, I would imagine that people's respect for the law will become "hollowed out" when the law says one thing and court decisions something else.

Yep. Laws which don't reflect the general beliefs of the citizenry are not good for anyone. Eventually they become ineffective, except as tools for some police to harass citizens.

[Elfwreck]

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.

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.

[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.

[Harmon]

Originally Posted by Elfwreck

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.

I agree with your point that there's not much to worry about involving using your Kindle on an open network. (And not much more using your iPad or iPhone.)

But IF you manage to get busted for that (you'd probably have to grab a cop and explain what you are doing to have any chance of anyone finding out about it,) I would not be happy relying on "implied consent" to a charge that could get some jail time or a serious fine. I'd go for a plea agreement - small fine, maybe some community service, and an expunged record down the line.

The sad fact is that once the law gets its hands on you, the outcome can be very disproportionate to the crime. Years ago, I spoke with a woman serving time for bouncing a check in downstate Illinois. It was for less than $100, and judging from what she said, it was a failed attempt to kite the check - that is, she hoped the money would be there by the time the check cleared. In Chicago, where I live, there's not a chance this sort of thing would be prosecuted.

Likewise, in Chicago, with wifi all over the place - protected, not protected, free with registration, floating loose - busting someone for hitchhiking onto the internet is not likely to occasion an arrest, much less a prosecution. But down in Quincy, it might be a different story.

[Kumabjorn]

Originally Posted by Harmon

I
Likewise, in Chicago, with wifi all over the place - protected, not protected, free with registration, floating loose - busting someone for hitchhiking onto the internet is not likely to occasion an arrest, much less a prosecution. But down in Quincy, it might be a different story.

Not entirely familiar with Illinois geography, but assuming Quincy is in Illinois, then it has to be very confusing for Illinoisans (are you called that?) if the law is applied in one way in Chicago and another in Quincy.

I'm guessing this is more or less a result of crime patterns in respective area, police in Chicago lack the resources, not much crime in Quincy, so plenty of time to look into minor offenses. Does that sum it up?

At the same time, laws are written to apply to everybody, everywhere (within its jurisdiction), but when they are enforced differently, respect for the statues will begin to erode and that in turns require more stringent detailed statues including all sorts of exceptions.

[shoey]

on a less severe note... if the kindle automatically tries to connect to an unsecured wifi by default over 3g, then potentially it could attempt to connect to paid wifi networks like london's the cloud. which then redirects u to a login webpage. if we cant opt out of wifi then we wont be able to use 3g whenever a network like the cloud or bt open zone is in range??

[Tiersten]

Originally Posted by shoey

if the kindle automatically tries to connect to an unsecured wifi by default over 3g

It doesn't connect automatically unless you've connected to that network before. If you did connect by accident then you can just tell it to forget that network and it will stop. The exception is AT&T hotspots in the US where Amazon and AT&T have a deal for free WiFi access so it will automatically connect.

Originally Posted by shoey

potentially it could attempt to connect to paid wifi networks like london's the cloud. which then redirects u to a login webpage. if we cant opt out of wifi then we wont be able to use 3g whenever a network like the cloud or bt open zone is in range??

See above.

[kennyc]

Originally Posted by HarryT

Would you also propose that it should not be illegal to walk into a house and steal someone's possessions if they've left their door unlocked? That's really a very similar situation.

And what about their ebooks?

[kennyc]

Originally Posted by HarryT

We are perhaps getting a little side-tracked from the original claim of this thread, which is that "using Kindle Wi-Fi can get you arrested".

That really is a somewhat dubious claim. The Kindle's WiFi can no more get you arrested than the WiFi on your smartphone, laptop, or any other WiFi-enabled device. It will not connect to any private WiFi network unless you tell it to do so.

or PUBLIC wifi for that matter. You have to specifically connect to a wifi provider it doesn't happen automatically (at least not the first time) as far as I know.

[Over]

Originally Posted by karthwyne

It is not something that I do, and IANAL, but I am rather certain that (...)

What does "IANAL" mean? Is it something related to Apple?

[Kumabjorn]

I Am Not A Lawyer