Viewpoint: The Promise of Public Wi-Fi Networks Includes Liability Headaches
The latest craze among municipal leaders is the deployment of publicly provided wireless networks. Officials in Dayton, Cleveland and Dublin seek public funds for wireless Internet, oftentimes shortened to Wi-Fi, networks in their cities. The relatively low start-up costs and technical availability of spectrum makes the idea attractive to civic leaders with an itch to “be digital.”
Unfortunately, the liability risks associated with publicly networks are too often overlooked. The promise of Wi-Fi, so the thinking goes, is that citizens will blissfully link their computers to the Internet and the local economy will bloom.
Public Wi-Fi networks, however, may just as easily turn into a haven for bad behavior. When Internet access is made available to all law-abiding citizens, it is equally available to law breakers. When criminals can choose between Internet access from firms that demand detailed billing information or anonymous access from the city, is there any doubt that they will flock to the municipal network.
Last month Florida officials held a pre-trial hearing in the case of a Wi-Fi hacker. The accused parked his car outside of a private residence and armed with a laptop computer, he is alleged to have hijacked the use of a home-based Wi-Fi network. Thus, there is a measure of “theft” to the incidence, but equally as important and perhaps more dangerous, if the hacker was engaged in malicious or illegal activities it is not at all clear that the homeowner is free of liability.
This is not the first case of uninvited use on Wi-Fi networks and it should sound the alarm for officials who aim to offer a public network. There are at least two federal laws that apply to the question of liability and potentially many more state laws and local ordinances. Under the Computer Fraud and Abuse Act the default rule is an “implicit lack of authorization” for access to wireless, even when they are not affirmatively protected by passwords or encryption.
Presumably, a municipality could offer Internet access to anyone but require agreement to its terms of use which may include prohibitions on illegal activity such as spamming, the exchange of child pornography or illicit trading of copyrighted material. In such a situation, the legal liability would be on the bad actor, not the municipality, but the public relations mess would be entirely in the lap of public officials.
While all fifty states have laws complementary to the federal Electronic Communications Privacy Act which attaches civil and criminal penalties to anyone who “intentionally intercepts” any electronic communication, liability does not always end there. A 2003 case out of North Carolina where a Wi-Fi network was hijacked to steal credit card information suggests that the network provider – potentially a city near you – has contributory liability for the crimes committed over the network. The same principle – under the name “vicarious liability” – applied in the music industry’s successful legal claim against Napster.
One way to understand the risk is by analogy. In essence, Internet providers are at risk of being an accessory to Internet crimes. Typically, the network provider must have a direct financial interest in the crime – as Napster had an interest in illegal downloaders using their system – for liability to attach.
But this should be small comfort to municipalities. A basic “job” of municipalities is to promote public safety and the health and welfare of a community. So, even though cities would not make a profit from criminals who use their networks, it is not unthinkable for courts to demand higher standards of security for municipal providers relative to private firms and stiffer penalties for failures.
City officials should avoid pushing their communities toward the municipal provision of wireless services solely on the basis of vague economic development goals or a desire to be on the cutting edge. Instead, leadership requires the full consideration of what it means to venture into an area that remains in legal limbo.
Kent Lassman is a research fellow at The Progress & Freedom Foundation in Washington, D.C., and an adjunct scholar of The Buckeye Institute for Public Policy Solutions
