In Which We Consider the History of Unlicensed Wireless Broadband

In this post, we consider the history of unlicensed radio spectrum, sometimes known as Part 15 Spectrum. This is a radio service that most of us are familiar with, but perhaps few have appreciated what a significant paradigm shift it represents. Unlicensed Part 15 Spectrum is found in garage door openers, remote control toys, and WiFi Internet Access.

Traditionally, the FCC doles out the right to use radio spectrum through the use of licenses. These set forth who can use what frequencies, in what locations, at what power levels, and sometimes for what purposes. Yet Part 15 sets aside a portion of the radio spectrum where no license is needed. How did this come about?

Our story begins in 1894 with Guglielmo Marconi. While young Marconi was living in Italy, he read an article about the possibility of something beyond the imagination: electronic communications without wires! Marconi was mesmerized - and he engaged on a quest to transmit telegraphs without telegraph wires.

Unfortunately, his home of Italy expressed little interest in this innovation. Britain, and particularly British Navy with its need to communicate with its ships at sea – was another matter. Marconi moved his family to England where he received a patent for his wireless telegraphs in 1897. He set up the Wireless Telegraph and Signal Co., and sought to capitalize on his inventions during the Industrial era. Four years later Marconi successfully transmitted a wireless signal across the Atlantic Ocean. Marconi quickly built a radio empire, donating radios to ships in order to demonstrate their utility, and only allowing radio stations using Marconi radios to communicate with other radio stations that used Marconi radios (sounds a bit like Customer Premises Equipment and Hush-a-phone issues).

Governments took notice. Communications has always been of military strategic importance from Pheidippides’ marathon run to Athens, to modern day spread spectrum radio devices that can elude jamming. The ability of a government to communicate with its fleet at sea presented a clear military advantage. The US Navy Department constructed radio stations all along the coast of the United States and equipped Navy ships with radios. This meant that, at the turn of the century, the lead federal agency regulating spectrum and radio usage was the US Navy (not the FCC).

Radio technology was in its infancy. Transmitting and receiving radios were not necessarily tuned to the same frequencies – nor was their much agreement or standardization about what frequencies should be used, or by whom. As a result, radio operators followed the principle of brute force. Transmitters would crank the power up, blowing out all other radios in the area.

This was the original spread spectrum - signals were spread out all over the radio dial. This was unlicensed - no government authority engaged in frequency coordination and licensing.

The result was that radio stations caused interference with each other - only one radio in an area could transmit at a time - and more powerful stations would wipe out weaker stations. As more radio companies, amateurs, and governments took to the air, the cacophony grew worse.

The Titanic disaster demonstrated this reality in many ways. The passengers of the Titanic might have been saved by the California, a 6000 ton ship 20 miles away. However, just before the Titanic’s demise, the California radio man had tried to use his radio to send the daily messages that had been piling up. But when he tried to transmit, he caused interference to the Titanic radio operator, who rebuffed him saying "Shut up, I'm busy with Cape Race." The California radio operator, at the end of a 16 hour shift, gave up, turned off his radio, and went off-duty – putting the California in the position of being unable to hear the Titanic’s distress call several hours later.

The situation had to change. The golden age of radio innovation had led to - a babel of radio interference – incompatibilities between radio services – a land grab for radio frequencies – and inadequate standards for the use of radios on ships. While initially the task of radio coordination fell on the US Navy, eventually this task would fall upon on an independent civilian agency. In 1927, Congress passed the Federal Radio Act – and established the Federal Radio Commission. Seven years later, the responsibilities of the Federal Radio Commission would be assimilated by the new Federal Communications Commission. The mission of these agencies was to prevent interference between stations by awarding licenses to radio operators, designating who has permission to operate, and on what frequencies.

Then, for several decades, very little of interest happened. In 1939, Germany invaded Poland and in 1941, the United States was formally brought into World War II with the Japanese attack on Pearl Harbor. It was in the midst of World War II that unlicensed radio had its origin. The idea came from an unlikely source: a movie star.

Hedy Lamarr was once described as “the most beautiful woman in film.” Ms. Lamarr knew first hand the danger of the Nazis and their ability to intercept allied communications. Her first husband was Friedrich Mandl, and arms dealer and Nazi sympathizer. At dinners, Ms. Lamarr would hear about the Nazi’s ability to intercept allied communications and know where US and British forces were.

After Lamarr fled to the United States, she met George Antheil. Together, they attempted to devise a way of beating Nazi jamming of allied radio controlled torpedoes. Their idea was frequency hopping radio which would elude jamming frequencies. As Antheil was a musical composer, the mechanism for determining which frequencies to use greatly resembled a paper player piano roll. In 1942, Lamarr and Antheil received a patent for their Secret Communication System – which they gave to the US Navy in order to help fight the war effort.

The objective of frequency hopping is simple: avoid interference. With traditional radio use, the transmitting and receiving radios are tuned to one specific frequency. If the enemy knows what that frequency is, the enemy can also transmit on that frequency, causing interference, and effectively jamming the communication. That was the problem Lamarr and Antheil sought to overcome.

Frequency hopping breaks the transmission into pieces – and transmits those pieces over a series of different frequencies. Instead of giving the enemy jammers one target to hit, frequency hopping uses several different targets that keep moving, and turning on and off – making it very difficult for the enemy to know what frequencies will be used. It also makes it very difficult for the enemy to intercept the message. For it to work, the transmitting radio and the receiving radios must know which frequencies and in what order, otherwise the message will be nothing more than gibberish. Lamarr and Antheil’s solution was a roll of paper with holes punched in it, like a player piano roll – both radios would be controlled by the same pattern of holes on the paper.

After Hedy Lamarr’s patent, little was heard about frequency hopping. Frequency hopping was a part of military history – and as such was classified. Military history suggests that frequency hopping communications was used during the 1962 Cuban Missile Crisis. In addition, during the 1972 Mid East War, an “unexpected” amount of interference from jamming was encountered – leading the Department of Defense to have renewed interest in frequency hopping. At about this point, spread spectrum technology become more visible to the public through a series of publications.

A flurry of research and development work was initiated by private companies. They sought to develop radios that took advantage of spread spectrum’s advantages, including its ability to solve interference problems. These companies faced a problem, however. This type of radio service was not authorized pursuant to FCC rules. Therefore, in 1979, Del Norte Technology filed the first of what would be multiple petitions before the FCC. This led to a 1985 FCC order changing its Part 15 rules and, for the first time, authorizing unlicensed spread spectrum service.

This was a dramatic paradigm shift for the FCC which had for decades used licenses in order to demarcated who could use what frequencies. With the promise that spread spectrum would prevent harmful interference to other authorized users, the FCC could embark on an unlicensed experiment with the goal of stimulating innovation.

Although Part 15 radios operate without licenses, they do have Rules of the Road – both for the equipment, and for the operators. Part 15 equipment must be authorized by the FCC as complying with Part 15 rules. In particular, Part 15 equipment is generally limited to small power outputs – which generally means that it has a short transmission range. Part 15 equipment cannot cause interference to other radio – and they must accept any interference.

And those who operate part 15 radios have acquired no right to do so. There is no First Come First Serve. The first radio in to be transmitting in an area doesn’t own that frequency in that area. Instead, the frequency is – as Prof. Yochai Benkler called it – a commons: a place where all may come – where no one can exclude anyone else – and where no one has a superior right to anyone else’s use.

If you think about it – this is an important concept for those legal squabbles about teenagers - sitting in a coffee house parking lot,- stealing WiFi so that they can play World of War – or the priests sitting on park benches outside a library in Nantucket checking email. One problem –since no one owns Part 15 spectrum so it cannot be stolen – but this is a subject for a different blog post.

Part 15 unlicensed radio service was a wild success. In 1988, the IEEE established a committee to work on something called 802.11 standards. This would be a agreed upon set of rules for how something works. That something would be WiFi radio communications. What the committee was doing was hammering out the agreed upon protocol for how WiFi radios communicated with each other. A year later, the work was completed, the 802.11b standard was ratified and the WiFi Alliance was formed. The next year, the 802.11a standard was ratified.

Before long, Wifi would be embedded into essentially every laptop sold. Wifi started appearing in printers, cameras, music players, and weird alarm clock things. The number of applications the FCC received for approval of new Part 15 equipment exploded. Equipment using Wifi – just one of the Part 15 protocols – became all but ubiquitous.

Hedy Lamarr’s interference beating invention had come to fruition. Instead of using licenses to solve interference, technology, specifically spread spectrum could solve interference. Without licenses, barriers to innovation were lowered and the geeks came marching in with lots of new toys.

[Disclaimer]

Photos: Federal Radio Commission, Wikipedia, Public Domain; Marconi Library of Congress, Public Domain; Titanic, NOAA, Public Domain; Lamarr, Wikipedia, Public Domain

Steal More Wifi, part 2.

See Part 1: Where It is Concluded that Part 15 Spectrum and Wifi are part of the Commons and Cannot be Stolen

We have two spaces. One is a commons; the other is . . . well, we don’t know. We’ll call it the proximate space. These two spaces exist next to each other. But where is the boundary? It’s not visible; it’s not detectable; there are no sign posts. As the individual moves from the commons space to the next space, how is the individual to know that a boundary has been crossed.

And this proximate space, the individuals lacks knowledge as to the nature of this space. Is it a public or a private space? Is access open or restricted?

The individual can move between the common space and the proximate space easily without knowledge that a boundary has been crossed. Indeed the Internet was designed not to announce boundaries between networks but to eliminate them.

What does it mean for an individual to move from the common space to proximate space? Specifically, what does it mean to say that the access to the proximate space is “unauthorized?”

It has been suggested that the proper way to analyze this is a Trespass to Chattels analysis. There is Trespass to Real Property where the issue is unauthorized access to land, and there is every other deprivation of property – such as “borrowing” someone’s Ferrari 250 GT California. Since computer networks aren’t real property (aka land), then, the argument goes, the analysis must be Trespass to Chattels.

But access to a network that is proximate to a commons network is not a deprivation issue; the individual is not backing a box truck up the back of a coffee house and hauling away the network equipment. This is an access issue and if the question is access, then the proper analysis is real property. We want to be able to answer the question, “I am here; am I allowed to be here?”

Real Property Law

In general, the owner of real property must provide notice to exclude would be trespassers. This notice can come through actual notice communicated directly to the individual (ie, “Hey, you kids! Getouttahere!”) or through posted notices (such as Piglet’s “Trespassers Will”).

The tort of trespass to real property is intentional; an individual generally cannot be said to be trespassing unless the individual has knowledge and intent. Lacking knowledge that one is on private land and that access is restricted, the individual generally is not trespassing.

These principals particularly come into play where an owner wishes to restrict access to private property which is somehow proximate to public or common property (for example, a public shopping mall with private offices attached). The boundary where the common space becomes restricted space generally must have clear notice such that the individual can identify the boundary and the restriction.

With WiFi networks, there is a network in a commons space where no one has ownership rights, no one can be excluded, and no one has supreme claims to anyone else - proximate to an unknown space - the same predicament as the real property situation.

When can it be said that crossing from this commons to this proximate space is “unauthorized?”

Presented in this framework, the answer is clear. The owner of the proximate space must provide notice of boundary and restriction. Lacking notice, the individual can soundly assume that access to the space is not unauthorized (oh no! a double negative!).

This might be difficult when using a network, the Internet, which by design eradicates boundaries. Fortunately, with the WiFi protocol, there is an easy means for the network owner to provide notice. WiFi Access Points can inform potential interacting individuals with the information of whether the network behind the AP is open or secure, and what the SSID is. If the AP informs the individual that it is secure (that while the individual and the AP can interact with each other, the individual cannot interact with the network on the other side of the AP which is outside of the commons space), then the individual knows that the AP is the boundary and that what lies beyond is restricted.

If the AP informs the individual that the network behind the AP is open, and here is the SSID, then the individual has not been informed that access is unauthorized, and the individual is not even sure that the AP is a boundary (the AP could simply be a node with both networks connected in the commons). The precedent establishes the sound policy that the owner must provide notice of boundary and restriction, and lacking notice, the individual’s access cannot be said to be unauthorized.

Based on the notice provided by the AP, the individual can now answer the question, “I am here; is my access authorized?”

Next: Part 3: Where We Explore Some Philosophy of Law Drivel That Supports this Conclusion

Photo: Wikipedia. [Disclaimer]

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.

[Disclaimer]

Photo: John Swords (cc)