Publication Date

2006

Volume

84

Document Type

Article

Abstract

As wireless computer networks are becoming commonplace, so also is the practice of accessing the Internet through another's wireless network. The practice raises a simple question of law: Does accessing a wireless network, without express authorization, violate the property rights of the network operator? This Article argues that it does. A neighbor who intentionally accesses the Internet through a network operator's connection appears to trespass on physical property of the operator - the operator's router. Recent Internet jurisprudence suggests that the electronic signals that the neighbor sends through the router are sufficient to find trespassory physical contact. The same jurisprudence suggests that the possibility that the neighbor could slow down the operator's Internet connection satisfies the tort's requirement of harm. Furthermore, the defense of consent does not appear to apply. Although the neighbor can raise an argument that the network operator consents to the neighbor's access when the operator fails to password protect the network, this argument is flawed. Failure to protect property does not imply consent to use property. The absence of password protection does not demonstrate consent, especially given that there is no economic reason that a network operator would want a neighbor to free ride on the operator's Internet connection. Finally, from a policy standpoint, the neighbor's conduct should be proscribed because of its negative externalities to Internet service providers. The free-riding neighbor strips Internet service providers of a return on their investment in Internet technology. To prevent this outcome, the conduct should be tortious. Trespass to chattel should lie.

Comments

Originally published in Nebraska Law Review and republished here with their permission.

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