Plans are afoot in Philadelphia and Huntsville, Alabama, as well as my hometown of San Francisco, to provide residents with low-cost or free wireless internet access. It's a great idea whose time has come, like drinking fountains, public toilets and park benches. But last week, the San Francisco Chronicle reported that my city's mayor expects a legal challenge from internet service providers like SBC and Comcast, who presumably prefer every San Franciscan to pay a monthly access fee.
Obviously, ISPs fear competition from a free service. But people pay for bottled water, music downloads, open-source operating systems and printed versions of free blogs. Companies can still make money in cities with public Wi-Fi by selling even faster service or bundling connectivity with subscriptions, software or support.
And a look a past lawsuits involving open wireless suggests that ISPs will need new legislation if they want to stop community Wi-Fi.
There have been only a few cases challenging open wireless access, but none against municipalities. Some ISPs have written cease-and-desist letters demanding that their customers stop sharing their broadband connections over wireless, though none of these complaints has evolved into a lawsuit. Many of these disputes are based on contractual provisions in the ISP terms of service, which often stipulate that customers won't share their broadband connections with other people. Some ISPs, like Speakeasy, encourage customer sharing, so this restriction is by no means universal. And while individuals may not have the bargaining power to change this contractual term when signing up for whatever ISP is available in their area, San Francisco and other municipalities certainly do.
In another case, Time Warner sued a New York City company that installed routers converting the cable provider's broadband service into building-wide wireless service. Time Warner claimed that the company was illegally capturing and reselling Time Warner’s signal. No court ruled on the validity of this argument because the parties reached a settlement agreement in which the defendant promised to stop what it was doing. But whatever company ends up providing wireless in San Francisco will do so with its own equipment and resources.
Finally, a smattering of cases have been brought against individuals for using someone else's wireless without permission. But with free municipal Wi-Fi, everyone is authorized to use it by definition.
So without legislation, ISPs have no legal basis for stopping community Wi-Fi. But legislation is a distinct possibility. The city of Philadelphia almost had to scrap its Wi-Fi plan when the state governor threatened to sign a bill barring cities from providing internet service for a fee.
To get legislatures to act, ISPs will argue that they can’t afford to invest in technological improvements if they have to compete with free services. But the loudest argument we'll hear won't be that the wireless service itself is illegal, but that people will use it for illegal purposes.
Internet crime, whether it be fraud or deceptive spam, is nothing new, but open Wi-Fi poses a genuine problem for law enforcement by making digital perpetrators harder to track.
Despite the popular view that the internet is anonymous, many net-enabled systems are set up to record or log the internet protocol, or IP, address of computers that make connections to it. When investigating digital crimes, law enforcement can simply look at these logs, and, if they haven’t been altered, obtain the IP address of the perpetrator. Using public registration data, they can tell that a particular address belongs to a certain ISP, and then go to that company (with the appropriate legal authority, usually a subpoena) and learn which customer was assigned that address during the relevant time period. Voil, they have a suspect.
But when the connection routes through an open and unencrypted access point, then anyone can use the service. Investigators can no longer trace an IP address directly to a suspect, only to a physical location.
This problem already exists because people have unsecured wireless nodes in their homes or small businesses, and universities frequently offer open Wi-Fi by design. Indeed, a handful of prosecutions have already been filed against people who used unsecured access points to cover their tracks.
But while criminals can always wield any useful technology to further illegal goals -- whether it be the internet or a getaway car -- the question we'll have to answer is whether the increased difficulty of identifying suspects means we should reject the technology for everyone.
There are tradeoffs here. If we have zero tolerance for internet-enabled crimes, then we have to lock down the network in ways that will make it far less useful. But there's always some risk inherent in the deployment of any beneficial technology, a risk we should balance against the value of bridging the digital divide, and giving the vast majority of innocent people easy connectivity outside the home.
Law enforcement will still have court-authorized wiretaps, premises surveillance and other investigative tools at their disposal. The real crime would be to let fear stand in the way of developing a valuable public resource that makes the internet as easy and cheap as turning on a faucet.
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Jennifer Granick is executive director of the Stanford Law School Center for Internet and Society, and teaches the Cyberlaw Clinic.
