At 03:55 PM 5/27/2003 -0700, you wrote:
Quite interesting, however,
I don't remember anywhere in the law that says that it is only a trespass if there is a "breaking" as well.
That is not my quite my contention; if you have a no trespassing sign, for instance, it is. But in most Western jurisdictions trespass requires that a reasonable person would have known that the _specific_ 'property owner' would not want him/her there.
To go a little into this, in the Anglo tradition at least, the notion of trespass is very much related to resource control -- it derives from the wardening of game and other resources on estates, and (briefly) it is of note that the common law (which still often has application) assumed that most resources were "naturally" open to all the public; others came to be open only to the vasslage of an estate; and, finally, with the establishment of private estates circa 1600, the resources in a particular area could become the 'property' of a baron or other holder.
Although that may have been the case in common law (the lawyer will understand that) it certainly isn't the case in modern law. If I somehow forget to lock my door when I leave for work one day, the delivery man who comes to drop off a package, and finds the door open, can't just come on in and make himself at home.
First, you prejudice the case by saying "forgot." How is the delivery man supposed to know you "forgot," and that it is not a common practive -- that you do not, in fact (as we do in San Francisco even), leave your door open
because your apartment is open to others?
In any case, it is a question of degrees and specifics. If your door is open, he most certainly and reasonably can open the door to deliver the package, and I think there is little question about that. Once inside, I think many police officers would think it reasonable (if odd) if he used your toliet, assuming he had the need. With no pre-established relationship between you and your deliveryman, I can't see him turning on the TV (unless, say, it were the morning of Sept. 11th, as a special case), much less opening or using the contents of the fridge. The latter just aren't reasonable, while the first are, and quite within what a reasonable person might suspect was OK.
Forget anything that he uses inside, water, toilet paper, electricity, whatever. That is a clear trespass.
He can use the toliet, flush it, and turn the light on. None of this is trespass.
Even if that were the case, that if you neglected to secure your premises, once would be allowed to make reasonable use of your property, that assumes a situation where it is common knowledge and just plain common sense, that if you want someone to stay out of your home, you should lock it. AP are different because, there is no such common knowledge, or common sense. Yes, to you and I, it might seem so, but the truth is, the general public isn't aware.
This is a reasonable point, but on the other hand, I would argue that general ignorance is not equal to "reasonable consensus on what is acceptable." Ignorance -- even when common -- is not a defense, and if your argument were to prevail, everyone in the world could run insecure servers and service and incur no responsibility.
As well, "common sense" is not quite the argument. Your argument comes off as "if you want to keep robbers out, you'd better use a good lock," which is a practical question. The question at issue is not security measures -- it is providing notice. And I'm saying that to your "common sense" argument there is, at the very least, a countervaling legal (and moral) argument that says that a property owner takes on responsibilities when acquiring a piece of property, and among them there is a responsibility to give reasonable notice if you don't want a piece of property open to the public, and that (to switch examples) if 99% of the people out there didn't even think that they needed to put a sign or fence around their pool, the Court wouldn't give a darn.
According to the Cabin analogy, if it is left open, can I use anything I want.
No, no, no, no, I simply did not say this. I said you can make reasonable, non-destructive use.
Can I use the TV and your electricity (assuming the place has electricity) What about eating the food and using the supplies. Obviously if the pantry and linen closet is not locked, I could use those things as well, correct?
We've mostly covered this before, as did my first post. If you stumble into a house in San Fransisco, I don't think making your way into the linen closet is going to be reasonable. If you stumble your way into an unsecured cabin the remote South Dakota mountains, and there are linens, I think it is reasonable to use them, presuming that you wash them and leave them in reasonably similar condition.
And how exactly do you figure that an AP is "a resource.. ("naturally")
open to the public" I think that needs a little explanation.
Hmmm... seems pretty bloody obvious to me that it is naturally open to the public: a property owner hooks it up, any appropriate radio card that stumbles into range intercommunicates with it, pretty darn natually open.
Your argument boils down to saying that (a) because an AP owner is too negligent/lazy/stupid/common to secure the AP, and because so many other owners are negligent, (b) we should default to assuming that all AP owners do not want access. From (a) to (b) is quite a leap -- in fact, it seems mired in your contention/prejudice that an AP owner (if she or he were not so ignorant) would want to secure the AP, a prejudice which has little factual support much less legal standing -- and in fact, I can't see how you could create positive factual support for your position could be created without making AP owners aware that their boxes are either open or not, quite clearly making them responsible for the administration of their property.
In the end, from my point of view your position seems that the poor AP owner should have the convenience of not even having to bother about the security of his or her network and how it may be open to others, and that pure ignorance should become an excuse for not taking reasonable caution. That truly is a slippery slope and a quite frightening one -- how far do we have to go until creating public nuisances (open pits, unrepaired roofing, etc) is excusable by common ignorance -- until keeping your brakes in bad repair is excusable by common ignorance -- until belching radioactive isotopes in the air is excusable...
"Common sense" and "common negligence" are simply not the same thing, securing an AP (if the owner wishes) is not that high a hurdle to jump if you don't want people making incidental use of it.
Cheers,
Ken
Thanx Michael
----- Original Message ----- From: "Kenneth Thomas" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Cc: "Fred H. Schlesinger" <[EMAIL PROTECTED]> Sent: Tuesday, May 27, 2003 3:29 PM Subject: [nycwireless] Legality/morality of use of unsecured APs [WAS: Goal...]
> > OK, this discussion has gone on for a while, and I dropped the question on > a certain EFF lawyer sitting next to me, so I thought I'd chime in. > > >Just because they are careless or stupid doesn't make it right to breach their > >network, and use their internet. if this is ok, how about reading their > >email, > >or snooping their hard drive, or lets just reformat the thing. > > In the language: "this does not follow," not at all. > > Just as it's quite different for a hiker to wander into an open cabin and > sleep there for the night, and for him to burn that cabin down, there's > quite a clear difference between enjoying IP connectivity on an unsecured > network in a non-destructive fashion (most likely legal), reading someone > else's email (certainly not legal), and reformating their hard drive > (generally heinous as well as illegal). > > It seems to me that, regardless of whether the owner "knows" how to secure > a network/AP, any owner nonetheless has a reasonable responsibility to > secure their property if they don't want others enjoying it. > > You can equally argue that anyone who leaves their cabin open may or may > not want a hiker using it -- but there's no way to know, and, legally, no > prohibition against reasonable, "natural" use. The (legal) presumption is > that a resource is ("naturally") open to the public unless there is a sign > from the owner-- literally, as in "no trespassing" -- or practically, as in > a lock or such that prevents entry. And if an owner is so clueless as not > to know to put a lock on the door if they don't want people coming in -- > well, of course it's neither legal or ethical to burn down the house, but > it is certainly fair to sleep in it. > > Stepping back to the classic legal example, if you own a shack and use even > a simple latch lock and gate (which are easily breakable), this is still an > indication that you do not want your property disturbed-- and anyone > breaking even the simple lock has committed a felony in most jurisdictions. > On the other hand, if you leave the gate and door unsecured, and there is > no other clear notice such as "NO TRESPASSING", this is generally (and > legally) taken to mean that your property is accessable to others -- who, > while they may not run off with your tools, may certainly wander in and use > them if they exercise reasonable care. > > Such an arrangement was in fact the norm for a good deal of northern Europe > for a millenea or so, and the fact that a majority of 20th-century city > dwellers in the Atlantic Rim can't quite imagine it does not change either > its legality or its good reason. > > In this case, it seems to me that a property (AP) owner that "would care" > about another's incidental use but does not have enough self-care and > discipline to secure his/her property (AP) from that use -- well, has > breached a basic responsibility to lock the door, indicate that he or she > is different from an AP owner that doesn't care or, in fact, would like > neighbors and others to share the property. Given that, and legally > speaking, any stranger-who-wanders-by (wireless card in hand) is only > obligated to reasonable behavior and conduct upon an open property -- > which, again, would seem to mean that incidental bandwidth use is OK, high > bandwidth use or other behavior that may damage/degrade the property is not. > > And, of course, this may not apply everywhere and in all situations. If you > are in Texas (where there is a statute against cable sharing) and someone > has put an open AP on a cable network, the Court might see wandering onto > the property quite differently, and consider it quite within any > interloper's responsibilities to check that they're not wandering onto > cable via ipconfig or such (since the cable company has clearly and > legislatively stated they don't want you on their network). > > Bottom line: if someone doesn't want you on their property/AP, they have a > responsibility to take reasonable action to indicate that. If they're too > ignorant/negligent to take care to lock the door, well, yes, it's obvious > that they don't want someone coming onto the property and reading their > email and destroying their files because they're dumb enough to have an > open router; but just because they don't want you burning the shack down, > doesn't mean that it's not OK to wander on in and share a little bandwidth. > > Cheers, > > Ken > > > > > At 02:49 PM 6/27/2003 -0400, you wrote: > >And some AP owners run their unprotected aps through unprotected routers, and > >expose their unprotected nodes to being snooped or worse. > > > >Just because they are careless or stupid doesn't make it right to breach their > >network, and use their internet. if this is ok, how about reading their > >email, > >or snooping their hard drive, or lets just reformat the thing. That 'll show > >them who is the smart.....crook > > > >----- Original Message ----- > >From: "Michael Yellin" <[EMAIL PROTECTED]> > >To: <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]> > >Sent: Tuesday, May 27, 2003 1:32 PM > >Subject: Re: Re: [nycwireless] Goal Accomplished > > > > > >| I'll chime in again, > >| > >| True, reality might be different then what is right, but that doesn't change > >| the fact that it is wrong to do it, no matter how many other people are > >| doing it. > >| > >| Also, how can you make an assumption that "most AP owners don't care". I > >| have a feeling that most AP owners don't know it is happening. I will, > >| however, agree that SOME don't care. Again though, that doesn't make it > >| right, or legal. > >| > >| And, as far as getting caught, true, that is the motivation for some > >| people not to break the law, but not getting caught, again, does not make > >| the act right or legal. > >| > >| However, if we are going to discuss what actually happens in the world, > >| true, you probably won't get caught, and most people will use WIFI that is > >| not theirs to use since it is easier and cheaper. We just shouldn't confuse > >| what it right and legal, and what actually occurs. > >| > >| Michael > >| Running out of cents to give. > >| > >| ----- Original Message ----- > >| From: <[EMAIL PROTECTED]> > >| To: <[EMAIL PROTECTED]> > >| Sent: Tuesday, May 27, 2003 10:19 AM > >| Subject: Re: Re: [nycwireless] Goal Accomplished > >| > >| > >| > Kevin, > >| > > >| > Reality and what is right are often two different things. If you > >| > believe that the vast majority of users would act as you did and > >| > drive out of their way to pay for something they could get freely > >| > where they are standing, everything is compasetic. > >| > > >| > If you believe that 99% of people would just use the free wifi, as > >| > I believe, the kind of issues arise that killed the music industry > >| > as we know it. > >| > > >| > Is everyone going to be as good a citizen as you, when most AP > >| > owners don't care...and the likelihood of getting caught is > >| > low...and the fact that this is "theft" is to most people unclear? > >| > > >| > > ----- Original Message ----- > >| > > From: Kevin M. Agard > >| > > To: [EMAIL PROTECTED] > >| > > Sent: Monday, May 26, 2003 11:52 PM > >| > > Subject: Re: [nycwireless] Goal Accomplished > >| > > > >| > > I'm sorry Jonathan, IMHO your arguments are no different than > >| > > those who > >| > > express the opinion that pirating commercial software is "OK" > >| > > because you > >| > > can. Well it is not and neither is stealing bandwidth, which is > >| > > exactly what > >| > > we are talking about here. > >| > > > >| > > KMA > >| > > > >| > -- > >| > NYCwireless - http://www.nycwireless.net/ > >| > Un/Subscribe: http://lists.nycwireless.net/mailman/listinfo/nycwireless/ > >| > Archives: http://lists.nycwireless.net/pipermail/nycwireless/ > >| > >| -- > >| NYCwireless - http://www.nycwireless.net/ > >| Un/Subscribe: http://lists.nycwireless.net/mailman/listinfo/nycwireless/ > >| Archives: http://lists.nycwireless.net/pipermail/nycwireless/ > >| > >| > > > >-- > >NYCwireless - http://www.nycwireless.net/ > >Un/Subscribe: http://lists.nycwireless.net/mailman/listinfo/nycwireless/ > >Archives: http://lists.nycwireless.net/pipermail/nycwireless/ > > -- > NYCwireless - http://www.nycwireless.net/ > Un/Subscribe: http://lists.nycwireless.net/mailman/listinfo/nycwireless/ > Archives: http://lists.nycwireless.net/pipermail/nycwireless/
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