Also regarding the legality issue, if it has not >been done to death,
the issue - when I researched this last year - might >not be as simple
as Craig suggested. He speaks accurately about >prior permission. But I
am not sure the 'your state my state' issue should >be dismissed out of
hand for that very reason: one problem seems to be >that states seem to
control how such authorization itself is >expressed, and lawyers and
legislators are unclear about how one can >reasonably assume authorization.
The problem of successfully prosecuting someone >who accesses an AP
without permission - even though arrests have >been made - seems fairly
tough.
Access and authorisation are not the issue. The law is well developed in terms
of property, license and authorisation. When you claim that it may be difficult
to prosecute, this is a function of evidence.
In the respect of the law, rules of evidence are also well defined. The issue
is that of collecting evidence. Being a matter of fact, the nature of the
evidence is not one that requires a large amount of legal dispute. It does
however require more than the word of the accuser.
In civil cases, the requirements are lower. In criminal, there is a higher
hurdle. Either way, there is a duty to collect evidence if you want to persue
this. The difficultly is that it is not likely that a system running an open
WEP gateway will have detailed logging and monitoring enabled. You do not need
to notify the user that they are accessing the system without authority; they
are not licensed to do so by the nature of the communications.
The law of license is a subset of property and requires a legal technical
background that I can not extrapolate adequately on this list.
If you read [1], this case covered many of these issues including some examples
of limitations. In this case, a ?blanket authorisation? was supplied to
investigators as the woman involved was actively sharing files and setup as a
peer to peer hub for mp3 distribution. Cases such as this are the exception.
There is a legal maxim ?difficult cases make bad laws?. The drive to make more
and more legislation to cover IT and Telecoms is making the Internet more
difficult to enforce, not less as some presume.
A few examples are included below. One thing to remember also is that in the
US, Federal; law owns telecoms and wireless, not state. They can also charge,
but the US Fed has priority.
[1} United States: C.T.L.R. 2006, 12(3), N60 [Computer and Telecommunications
Law Review] Publication Date: 2006
[2] Future regulation of the communications industry still in the balance.
Nick Pimlott.
Comms. L. 2003, 8(2), 247-249
[Communications Law]
Publication Date: 2003
[3] ECJ - judgment on Canal Satelite Digital.
Sebastian Pooschke.
Legal I.E.I. 2003, 30(3), 267-277
[Legal Issues of Economic Integration]
Publication Date: 2003
[4] Computer crime - UK/Singapore: unauthorized access to computer data.
Ter Kah Leng.
C.L.S.R. 2000, 16(3), 187-189
[Computer Law & Security Report]
Publication Date: 2000 ?UK and Singapore cases on meaning of unauthorized
access and use of computer data.?
Regards,
Craig
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