Don't Let Fear Kill Muni Wi-Fi

Don't Let Fear KillMuni Wi-FiBy Jennifer Granick02:00 AM Oct. 12, 2005 PT
Plans are afoot in Philadelphia andHuntsville, Alabama, as well as myhometown of San Francisco, toprovide residents with low-cost orfree wireless internet access. It's agreat idea whose time has come, likedrinking fountains, public toilets andpark benches. But last week, the SanFrancisco Chronicle reported that mycity's mayor expects a legal challengefrom internet service providers likeSBC and Comcast, who presumablyprefer every San Franciscan to pay amonthly access fee.Obviously, ISPs fear competition froma free service. But people pay forbottled water, music downloads,open-source operating systems andprinted versions of free blogs.Companies can still make money incities with public Wi-Fi by sellingeven faster service or bundlingconnectivity with subscriptions,software or support.Circuit CourtAnd a look a past lawsuits involvingopen wireless suggests that ISPs willneed new legislation if they want tostop community Wi-Fi.There have been only a few caseschallenging open wireless access, butnone against municipalities. SomeISPs have written cease-and-desistletters demanding that theircustomers stop sharing theirbroadband connections overwireless, though none of thesecomplaints has evolved into alawsuit. Many of these disputes arebased on contractual provisions inthe ISP terms of service, which oftenstipulate that customers won't sharetheir broadband connections withother people. Some ISPs, likeSpeakeasy, encourage customersharing, so this restriction is by nomeans universal. And whileindividuals may not have thebargaining power to change thiscontractual term when signing up forwhatever ISP is available in theirarea, San Francisco and othermunicipalities certainly do.In another case, Time Warner sued aNew York City company that installedrouters converting the cableprovider's broadband service intobuilding-wide wireless service. TimeWarner claimed that the companywas illegally capturing and resellingTime Warner’s signal. No courtruled on the validity of this argumentbecause the parties reached asettlement agreement in which thedefendant promised to stop what itwas doing. But whatever companyends up providing wireless in SanFrancisco will do so with its ownequipment and resources.Finally, a smattering of cases havebeen brought against individuals forusing someone else's wirelesswithout permission. But with freemunicipal Wi-Fi, everyone isauthorized to use it by definition.So without legislation, ISPs have nolegal basis for stopping communityWi-Fi. But legislation is a distinctpossibility. The city of Philadelphiaalmost had to scrap its Wi-Fi planwhen the state governor threatenedto sign a bill barring cities fromproviding internet service for a fee.To get legislatures to act, ISPs willargue that they can’t afford toinvest in technological improvementsif they have to compete with freeservices. But the loudest argumentwe'll hear won't be that the wirelessservice itself is illegal, but that peoplewill use it for illegal purposes.Internet crime, whether it be fraud ordeceptive spam, is nothing new, butopen Wi-Fi poses a genuine problemfor law enforcement by makingdigital perpetrators harder to track.Despite the popular view that theinternet is anonymous, manynet-enabled systems are set up torecord or log the internet protocol, orIP, address of computers that makeconnections to it. When investigatingdigital crimes, law enforcement cansimply look at these logs, and, if theyhaven’t been altered, obtain the IPaddress of the perpetrator. Usingpublic registration data, they can tellthat a particular address belongs to acertain ISP, and then go to thatcompany (with the appropriate legalauthority, usually a subpoena) andlearn which customer was assignedthat address during the relevant timeperiod. Voilà, they have a suspect.But when the connection routesthrough an open and unencryptedaccess point, then anyone can usethe service. Investigators can nolonger trace an IP address directly toa suspect, only to a physical location.This problem already exists becausepeople have unsecured wirelessnodes in their homes or smallbusinesses, and universitiesfrequently offer open Wi-Fi bydesign. Indeed, a handful ofprosecutions have already been filedagainst people who used unsecuredaccess points to cover their tracks.But while criminals can always wieldany useful technology to furtherillegal goals -- whether it be theinternet or a getaway car -- thequestion we'll have to answer iswhether the increased difficulty ofidentifying suspects means we shouldreject the technology for everyone.There are tradeoffs here. If we havezero tolerance for internet-enabledcrimes, then we have to lock downthe network in ways that will make itfar less useful. But there's alwayssome risk inherent in the deploymentof any beneficial technology, a riskwe should balance against the valueof bridging the digital divide, andgiving the vast majority of innocentpeople easy connectivity outside thehome.Law enforcement will still havecourt-authorized wiretaps, premisessurveillance and other investigativetools at their disposal. The real crimewould be to let fear stand in the wayof developing a valuable publicresource that makes the internet aseasy and cheap as turning on afaucet.
- - -Jennifer Granick is executive directorof the Stanford Law School Centerfor Internet and Society, and teachesthe Cyberlaw Clinic.