The widely reported arrest of another person for ‘stealing an unsecured broadband connection’ has led to comment in all sorts of media. There have even been discussions of the morality of such actions on the BBC web site. IT lawyers may wish to brush up on the matter so that they can retain credibility in the pub or at the Bank Holiday BBQ.
The latest incident of allegedly unlawful ‘leeching’ was reported by Yahoo News (reacting to an ITN news item) in the following terms: ‘a man who was spotted in the street using his laptop to access an unsecured wireless connection has been arrested. The 39-year-old man was seen sitting on a wall outside a home in Chiswick, west London, by two community support officers. When questioned he admitted using the owner's unsecured wireless internet connection without permission and was arrested on suspicion of stealing a wireless broadband connection. The man was bailed to October pending further inquiries’.
Yahoo and ITN can be forgiven for referring to stealing a broadband connection – it is fair to say that the offence which was envisaged, under s 125 of the Communications Act 2003, is really analogous to stealing. The Communications Act 2003, s. 125 provides as follows:
(1) A person who—
(a) dishonestly obtains an electronic communications service, and
(b) does so with intent to avoid payment of a charge applicable to the provision of that service,
is guilty of an offence.
(2) It is not an offence under this section to obtain a service mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988 (dishonestly obtaining a broadcasting or cable programme service provided from a place in the UK).
(3) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.
Detective Constable Mark Roberts, of the Metropolitan Police Computer Crime Unit (to which the matter was referred), said anyone who illegally uses a broadband link faces arrest. He said: "This arrest should act as a warning to anyone who thinks it is acceptable to illegally use other people's broadband connections. To do so potentially breaches the Computer Misuse Act and the Communications Act, so computer users need to be aware that this is unlawful and police will investigate any violation we become aware of." (For the full Yahoo report, click here.)
Laurence Eastham writes:
That is probably all you need to know if you are to retain credibility in the pub. But if you really want to show off, you might like to think about the issues in detail. Here's an argument to get you started.
Leaving aside the fact that, whatever the detective constable may say, it is either a breach of those Acts or it isn’t as the criminal law does not recognise the concept of the potential breach (and neither does logic), the reference to ‘unlawful’ and ‘violation’ raises interesting issues. Is there a breach of any law or property right? Deryck Houghton’s comment on the excellent IMPACT blog (which first drew my attention to the case) mainly focuses on the amazing misfortune of the perpetrator in being nabbed by not one but two community support officers but the equally excellent service Out-Law.com does seem simply to accept that there is an offence under the Communications Act but quotes Struan Robertson saying ‘The Computer Misuse Act is probably not relevant if someone is only taking advantage of an unsecured wireless network. A prosecutor would have to convince a court that a wireless router is itself a computer under that Act. It is far easier to justify a charge under the Communications Act for Wi-Fi leeching’.
I appreciate that someone has actually been convicted of the offence for ‘leeching’ in the past (I suspect that they made foolish admissions) but the facts of this case, insofar as reported, do not suggest to me that there was any offence here or that most persons engaged in leeching are guilty of an offence.
Let’s start with the easier one. I agree totally with Struan Robertson’s view that a prosecutor has a hurdle to climb on the question of what constitutes a computer for the Computer Misuse Act offence (presumably s 1 is in mind). That is the biggest hurdle but there may be another one as s 1(1) provides as follows:
(1) A person is guilty of an offence if—
(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;
(b) the access he intends to secure is unauthorised; and
(c) he knows at the time when he causes the computer to perform the function that that is the case.
How could anyone possibly ‘know’ that his use of an unsecured broadband connection is unauthorised? Lots of people and organisations create wi-fi hot-spots with the deliberate intention that others might use them. The absence of permission does not equate to knowledge that access is unauthorised. You might well find it hard to distinguish between a private household wi-fi network that is leaking and a public wi-fi access of the kind that is freely available in some UK areas and in many other countries. (Impending amendments to s. 1(1) under the Police and Justice Act 2006, s 35 do not really affect the arguments here.)
Communications Act 2003
The more serious points arise under the 2003 Act. My focus would be on two essential ingredients of the offence.
Is there dishonesty?
The mere act of sitting on a wall to get a signal does not demonstrate any dishonesty, that’s for sure. When in my apartment in Spain, I can get a free public signal if the wind is blowing in the right direction and if I sit near the front of the balcony. I can only get a Blackberry to work in my UK home if I stand on a garden wall and face east. So there is nothing suspicious about the alleged leecher’s stance.
He may know that all persons setting up a home wi-fi are advised to set security barriers; he might well assume that those who do not do so are either unperturbed by the idea that other might use the connection or, like some of the people contributing to the BBC discussion on the moral aspects of this, positively encourage such access. If he had been wise enough to claim something along those lines or a measure of ignorance about the source of the connection, it would be very difficult to demonstrate dishonesty. Certainly the absence of permission does not demonstrate dishonesty.
Is there ‘intent to avoid payment of a charge applicable to the provision of that service’?
There are a number of aspects to this. First, the charge for the service has almost certainly been paid by the householder whose wi-fi is leaking. While the payment which our leecher might be said to be avoiding is one for his own Internet connection, I think that is for a different service. It is extremely unlikely that there is a charge applicable to the leaked signal itself and that is the ‘service’ which he actually obtained. How therefore can he be avoiding payment when there is no charge applicable to the service? It is not likely that the leecher regularly surfs the net while sitting on the garden wall – at least not with the summer we have been having – so he probably does pay to access the net and is either a visitor or is suffering downtime. Does that make a difference? Finally, if I were stuck in Spain with the wind blowing in the wrong direction and accessed a neighbour’s signal without authorisation (God forbid), it would not be the neighbour or the neighbour’s ISP that suffered any discernible loss, it would be the proprietor of the Internet café in town whose premises did not get a visit from me – as there are 72 of them, it would be tricky to identify a loser.
But notwithstanding the more open attitudes of some to personal wi-fi connections, is there anything unlawful in leeching? I am attracted by the idea of equating it with a stray ball in a public park. If it comes my way and I briefly play keepy-uppy before returning it, I have done nothing wrong and the ball and its owner suffer no actionable harm. But leeching doesn’t feel quite right does it?
I think that the answer is to be found away from the criminal law and away from mens rea. We don't prosecute for a criminal offence when someone walks across their neighbour's garden without permission but we do know that action is unlawful. Is wi-fi leeching a new form of trespass?