Unsecured wifi might be contributory negligence

Roland Perry lists at internetpolicyagency.com
Tue Feb 21 16:00:56 GMT 2012

In article 
<CADWvR2huKsFh0ysvO6hmH4mSvGocJC5FufBMr8_RuhWZzhNfXQ at mail.gmail.com>, 
Igor Mozolevsky <mozolevsky at gmail.com> writes
>> It's not havoc, but risk, and is passed on to subsequent inhabitants.
>Firstly, that only goes to support the point that I was making---your
>liability is limited to yourself and a clearly identifiable *small*
>class of people, not the world of home owners (or in our case Internet
>users) at large. Secondly, I would presume, the earlier inhabitants
>still have the "it wasn't my 'handiwork' that was defective"
>defence---the thing you are suggesting is eliminated for households
>wrt "unsecured" wifi routers.

The analogy is about laws being passed to make domestic technology 
installations meet some minimum standard.

>>> Are you not ending up in a situation where the householders are far
>>> worse off than public wifi providers in this scenario?
>> That's why discussion of liability of intermediaries is so important.
>> It normally excludes the issue of "involuntary intermediaries" though.
>I don't see what point you are trying to make: are you saying that
>public wifi providers ought to be afforded greater protection at law
>than the households,

The laws which give "commercial" intermediaries a degree of protection 
are there precisely to promote the commercial availability of access, 
because no suppliers would be able to take the risk of being in that 
business otherwise.

>> And aren't you arguing that someone who apparently "needs" to run an open
>> domestic wifi point could be a casualty?
>Absolutely, but not just those who "need" to do so, but innocent, yet
>not sufficiently technically competent to do something about it, as
>well. Let me give you a practical illustration here: I have put your
>suggestion to someone whom I consider to be "a reasonable person" and
>initially that person was entirely agreeing with your suggestion, but
>only up to the point when I asked whether that person considered
>themselves to be sufficiently competent to avoid liability if such law
>was passed.

Would that reasonable person deny the CORGI gas installer scheme, or the 
need for CE marks on some equipment, on the grounds they might not be 
able to pass the qualification or test the apparatus themselves?  What's 
needed here is public awareness that certain standards need to be met, 
then you can find the equipment (and if necessary installers) to meet 
that standard.

>>> Proportionate to what---the alleged infringement, householder's
>>> income, some other yardstick?
>> I don't think anyone has decided yet.
>I can't take this any further than this then...

I'm trying to look into a 'safer' future.

>>> How are you going to prove that a bad thing has happened?
>> That's relatively easy. Seeing spam emanating, or a copyright work being
>> shared, or harassment taking place.
>Let's think about the situation in these scenarios. With spammers, you
>would have some affiliation between the spammer and the contents of
>the messages, some form of payments, and I would hazard a guess
>templates of those messages would be stored somewhere "handy".

That's a very naive view of what Spam is and what it contains. If it was 
that easily traceable, people would have stopped most of it by now.

> In the case of harassment, there is some form of relationship between 
>the harasser and the harassee, or in case of a stalker, one would 
>expect to find some other evidence (e. g. a huge collection of photos).

Once you've found them, but if they are using a neighbour's open wifi, 
that could be almost impossible.

>Dealing with a large scale copyright infringement (sufficiently large
>to bring that within the ambit of a criminal offence) you would have
>other corroborating evidence and, more significantly, payments made to
>the person distributing the works, which is what seems to attract the
>FBI attention.

Again, very naive view of what's happening with (eg) pirated movies. 
Most of the people distributing them on P2P are not requiring payment.

>The problem seems to arise (and this appears to be the case in the
>original article that you have pointed to, or at least that is the
>inference I am making from abstracts of the court filing quoted
>therein) when the IP rights holders (or their agents) use torrent
>tracking to identify those who they think are "sharing" and have
>diddly-squat by way of corroborative evidence. In the first MediaCAT
>judgment [1], there was an explicit point being made by the judge
>about the fact that mere "IP address" evidence is quite simply
>untested and the judge did not appear to want to test it there and
>then. What you seem to be suggesting is that such evidence (even
>though produced by an interested party without any corroboration) is
>sufficient for civil/criminal liability. Are you seriously saying that
>you are happy with that situation?

I'm not at all happy with the way some previous investigations have been 
bodged. That's why better traceability would significantly increase the 
probability that the IP address could be linked to the infringers.

Roland Perry

More information about the ukcrypto mailing list