Whacking, Joyriding and War-Driving: Roaming Use of Wi-Fi and the Law

Nokia, the Finnish mobile phone manufacturer, has referred to roaming Wi-Fi use as "robbing," (1) while the New York Times ethicist says that it is fine. (2) This article explores the controversial practice of using unencrypted Wi-Fi network connections to the Internet without the prior express approval of the network's operator. Roaming Wi-Fi use creates value for individuals and society through its expansion of the accessibility of high speed Internet connections outside the home or office. However, inconsistency and lack of clarity in current law have created uncertainty among Wi-Fi users that could threaten that value. Part I introduces Wi-Fi technology and its explosive growth. It then explains that many networks are either intentionally or unintentionally "open," allowing access to the network by a roaming Wi-Fi user. Finally, Part I distinguishes "whackers," or wireless hackers, from roaming Wi-Fi users. Roaming Wi-Fi users include "joyriders" that use an open Wi-Fi connection to access the Internet, "war-drivers," who scan, locate, and map Wi-Fi access points, and accidental users, who unintentionally connect to a Wi-Fi network. Part II discusses the benefits and costs associated with roaming Wi-Fi use. Use of open Wi-Fi connections to enable access to the Internet should be encouraged because this use will contribute to the continued expansion, flexibility, and "footprint" of the Internet, as well as the development of new networking technologies. Concerns regarding the costs of this use, security risks, and liability risks do not change this conclusion, even in the case of networks that have inadvertently been left open. Part III examines federal statutes, state statutes, and a common law trespass action, all of which initially appear relevant to roaming Wi-Fi use. While most federal statutes will not apply to roaming Wi-Fi use, application of the laws of many states, and possibly the Federal Computer Fraud and Abuse Act ("CFAA"), to roaming Wi-Fi use depends on whether roaming Wi-Fi use is considered intentional, unauthorized access. Examination of federal, state, and common law decisions reveals four basic approaches to defining intentional, unauthorized access. Most jurisdictions do not provide guidance as to how intentional, unauthorized access is to be interpreted. Part IV analyzes the four tests for finding intentional, unauthorized use, and concludes that access to an open Wi-Fi network should be considered intentional, unauthorized access only if the network operator has taken affirmative steps to prevent access. This approach provides clarity to Wi-Fi users, facilitates roaming use of Wi-Fi, encourages responsible security practices, and simplifies enforcement of unauthorized computer access statutes. This article concludes by encouraging legislators to consider modeling their statutes after New York's unauthorized computer access statute. Alternatively, under statutes that do not provide clear guidance in interpreting intent and authorization requirements, courts should consider following decisions that find intentional, unauthorized access only if security measures have been adopted. Finally, in cases where statutes already dictate the application of approaches other than the approach advocated in this article, courts should consider the context in which roaming Wi-Fi occurs, as well as the value of facilitating roaming Wi-Fi, in determining whether a user may assume that access to an open network is permissible. I. INTRODUCTION Wi-Fi (3) wireless data networking technology has been a great success story in the first few years of the twenty-first century. Wi-Fi (short for "wireless fidelity") is a short-range networking technology that allows computers with Wi-Fi capability to connect to computer networks and the Internet using a radio connection rather than wires. In most cases, Wi-Fi connections take place between a laptop computer with a Wi-Fi card or integrated Wi-Fi capability and a radio "access point" located within approximately 300 feet of the laptop. …