Wednesday, January 30, 2008

Steal More Wifi!

So what about all those folk who have been busted for stealing Wifi. You know, those nefarious dudes in long black trench coats that congregate outside coffee houses, checking their emails and whether their tech stocks have tanked.

Misconception for today: “You can steal Wifi.”

This misconception has been repeated numerous times in the media and popular culture. See Mark Rasch, WiFi High Crimes, Security Focus (May 3, 2004) (discussing whether using someone else’s WiFi wireless signal could constitute a felony); Hale, Robert V., "Wi-Fi Liability: Potential Legal Risks in Accessing and Operating Wireless Internet," Santa Clara Computer and High Technology Law Journal, Vol. 21, p. 543, 550 (2005) (discussing “unauthorized” use of WiFi); John C Dvorak, The Right Analogy for Wireless Signal Spill, PC Magazine (August 1, 2005) (discussing wifi signal theft or poaching) . The just released suspense thriller Untraceable teases potential audiences with the somewhat credible tech-savvy FBI agent exclaiming that the bad guy “got into my wireless network.”

Hokay. The problem here is that a whole bunch of different stuff is muddled. We have confused concepts of property and conflated what it is that is being stolen.

Let’s deconstruction the crime scene.

First, the Way-Back Machine: The Federal Communications Commission was given authority by Congress in 1927 to regulate the radio spectrum as a scarce resource in order to avoid interference between transmitters. In the birth of the radio era, the right to use spectrum was largely first-come first-serve. And that worked for a while - until jerks figured out that they could juice up their transmitters, blow out their competitors, and reach a greater audience. So the right to use spectrum and the avoidance of interference moved from first-come first-serve, to a licensing process based on the merit of the applicant (which became widely criticized as FCC beauty contests that unjustly rewarded those who could best manipulate the bureaucracy, and led to licensing based on auctions). Without one of those FCC stamped pieces of paper, you had no right to use the spectrum and you could not interfere with others use of the spectrum.

In the 1990s, the folks at Apple and other places got it into their heads that computers had become powerful enough to deal with interference issues on its own without relying on a licensing regime. From a computer company point of view, the objective was to construct Local Area Networks (LANs) using low powered, short range transmissions to connect boxes, without the administrative inefficiency of obtaining a license simply to transmit a few meters from a Macintosh to a printer. Apple argued for the creation of an Unlicensed National Information Infrastructure (U-NII) where everyone could use the spectrum without a license, no one could exclude anyone else, no one has a superior right to use the spectrum, and any issues of interference would be handled through computing power.

In 1997, the FCC was persuaded, and created new Part 15 rules. Equipment would have to be certified as compliant with the specifications in the rules. Otherwise, those who used the spectrum need not have a license, could use the spectrum freely, but had no claim of right to the spectrum and could not exclude anyone else.

In 1998, Prof. Yochai Benkler presented a paper at the Telecommunications Policy Research Conference which concluded that the UNII Band “creates a legal space for the first broadband infrastructure commons.” The concept of a commons is a particular notion of property that goes back to discussions of cattle grazing on public land, or commons, in England. In contrasting the commons with other types of property, common property has the characteristics of being publicly available where the users of the property cannot exclude other users, but their use is rivalrous (in this situation, the user of the common property captures a gain from the use of property that exceeds his cost, creating an incentive to continue or increase use the property until the property is depleted for all – creating what is known as the tragedy of the commons… but the tragedy of the commons is a subject for another time).

The conception of Part 15 spectrum as a commons is not a notion that emanated from the FCC (the FCC has neither accepted nor rejected this classification). It is, however, compelling. Part 15 is a communications space where the property rights are distinct. As opposed to the licensing paradigm where the owner of the license has a superior right to occupy the space and can exclude other users, with Part 15 U-NII, all may be in this space, no one may exclude others, and no one can claim a right to superior use. They just have to deal with lots of people sharing the commons.

Well how do we deal with multiple people entering the commons and not interfering with each other? There must be some protocol for who can talk at any given moment and who cannot. And if we create a protocol controlling who can talk, we also want to build in how to listen. The IEEE set to work on this and created 802.11a,b, and g, otherwise known as WiFi. Wifi is simply one protocol for how radios know how-and-when to talk and listen while avoiding interference; there are others (and many others are colloquially referred to as WiFi even though they are not). But WiFi has become a wildly popular and successful. WiFi is the protocol for the computer handling interference issues in lieu of a licensing regime.

Right. Now back to the crime scene. The owner of a Coffee House has decided to offer Internet access over Wifi for free as a loss leader, hoping that it will encourage guys in black trench coats to purchase cheapest refillable cups of coffee, and refill them ten times as they sit in the coffee house for three hours writing blog posts. The Coffee Shop owner decides to purchase a certified WiFi access point that will transmit in the Part 15 spectrum commons. The Coffee Shop owner attaches this access point to a telco DSL line which the owner pays for. The WiFi access point broadcasts in the Part 15 spectrum its SSID name so that potential coffee drinkers know the SSID name necessary to talk with that access point pursuant to the Wifi protocol.

Now Charlie the Unicorn pulls up into the coffee house parking lot in his convertible Mustang (what else would he be driving), uses his WiFi certified laptop to detect a WiFi signal, and connects to the Internet over the Part 15 Spectrum using the Wifi protocol. Charlie checks craigslist to see if he can find a new kidney that he so desperately needs.

Law School Exam Question: What law, if any, did Charlie break? Please discuss, citing relevant authority; you have 30 minutes.

Well, today let’s just ask one small part of the question: has Charlie “stolen the Wifi signal.” Has Charlie used the Coffee House’s Wifi?

Hopefully at this point we are pretty much beating on a dead unicorn. Hopefully you get the point I am trying to make. But for you hockey players out there who have been hit in the head a few too many times, let’s spell it out.

Charlie cannot steal the spectrum. The spectrum is an unlicensed commons. It belongs to no one; it belongs to everyone. You cannot exclude people from this spectrum; you cannot claim a superior right to use of this spectrum.

WiFi is a protocol designed for this spectrum to resolve interference issues and establish how different radios can connect to each other. The WiFi protocol is designed to operate in the spectrum commons. These WiFi radios are, by designed, constructed to freely talk with each other and establish who will talk with whom without interference. They must be a part of the commons in order to achieve their purpose. The WiFi protocol, this handshake, signaling and sharing of signals back and forth that the radios do, cannot be stolen.

Now the coffee house has connected their WiFi access point to a private telco DSL line that connects with the Internet. What is the significance of attaching private property to commons property; and how would Charlie know whether he may enter the private property. This is a question for another time; the import point for now is to realize that there are two things here: (1) a private computer network attached to (2) Part 15 commons spectrum. These are two separate property spaces that necessitate two separate analyses. The connection of a private computer network does not contaminate the commons spectrum and transform it into something private.

Not persuaded. Let’s go for the metaphor – only it’s not a metaphor, it is simply a different protocol in the Part 15 unlicensed commons: walkie talkies. In this scenario, the coffee house is using walkie talkies to communicate with staff that the front counter is facing a critical biscotti shortage. Charlie pulls into the parking lot with a walkie talkie, hears the conversation over his radio, and then uses his radio to speak pretalian and ask the coffee shop how much a Triple Muy-Gordito is. Did Charlie “steal the walkie talkie”? Did Charlie steal the Part 15 spectrum? Was Charlie’s use of the Walkie Talkie to talk with the coffee house unauthorized? If you don’t laugh at this question, you need to go back and study communications law for a good long time. The Walkie Talkie Spectrum cannot be stolen by definition.

Well what if the Coffee House connected the Walkie Talkies to VoIP? Again, not the question that needs to be answered today, as long as you understand that the use of the Walkie Talkie spectrum is not the same as the use of the VoIP to which it is connected.

What difference does all this make? A poorly framed legal or policy question results in a poorly framed answer. Today we struggle to get the question right. People are contorting themselves struggling to determine whether WiFi can be stolen (or poached or piggy backed) because they start with the assumption that the WiFi, like everything else, is private property. It is not - and it cannot be stolen.

Tomorrow, we ponder what this might mean.


Photo: John Swords (cc)

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