Accessing the Internet Through the Neighbor's Wireless Internet Connection: Physical Trespass in Virtual Reality

• Publication year: 2021

84 Nebraska L. Rev. 1226. Accessing the Internet Through the Neighbor's Wireless Internet Connection: Physical Trespass in Virtual Reality

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Ned Snow(fn*)

Accessing the Internet Through the Neighbor's Wireless Internet Connection: Physical Trespass in Virtual Reality

TABLE OF CONTENTS

I. Introduction ...................................................... 1227
II. Factual Background ............................................... 1231
III. The Elements of Trespass to Chattel Applied to Wi-Fi
Joyriding ....................................................... 1234
A. The Chattel .................................................. 1235
B. The Trespass ................................................. 1238
1. Physical Contact .......................................... 1239
a. Jurisprudence Dealing with Physical Contact
in Cyberspace .......................................... 1239
b. Criticism of Physical Contact in Cyberspace ............................................. 1242
2. Harm ...................................................... 1244
a. Two Actionable Harms ................................... 1244
b. Harmless Intermeddling with the Router ................. 1249
3. Intent .................................................... 1254
IV. Defenses of Trespass to Chattel Applied to Wi-Fi
Joyriding ........................................................ 1255
A. The Wi-Fi Operator's Seeming Consent to
Joyriding ..................................................... 1255
B. The Joyriding Neighbor's Seeming Abatement to a
Wi-Fi Nuisance ................................................ 1260
V. Conclusion ........................................................ 1263

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I. INTRODUCTION

Wireless fidelity ("Wi-Fi") technology brings the Internet anywhere that a radio signal can reach.(fn1) Transmitting radio signals beyond the confines of walls, fences, and property lines, Wi-Fi technology delivers newfound convenience to a person who operates a wireless computer network ("Wi-Fi operator").(fn2) This convenience, however, has given rise to an unintended externality. Persons whom the Wi-Fi operator never intended to receive the transmission may realize full Internet access at the operator's expense.(fn3) A Wi-Fi operator pays $29.95 each month for Internet service;(fn4) the operator's next-door neighbor reaps that same service for free.(fn5) In the lexicon of cyber speech, this phenomenon is appropriately referred to as "joyriding."(fn6) Joyriding can cause substantial delays in data transmission,(fn7) and it can facilitate the diffusion of harmful viruses to all computers within the wireless network.(fn8) Yet despite these possible harms, Wi-Fi operators often do

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not password protect their networks.(fn9) Joyriding has thus become common practice.(fn10) The law should intervene.(fn11)

The question of whether the common law permits a neighbor to joyride on a wireless network presents novel and complex issues of tort and property law.(fn12) At first glance, it seems that the joyriding neighbor does not invade any legally protected interest of the Wi-Fi operator, even though the Wi-Fi operator may suffer negative externalities.(fn13) Tort law does not appear to protect a Wi-Fi operator's interest in the wireless network because a wireless network comprises radio signals.(fn14) Radio signals are uncontrollable by nature, and thereby cannot be property.(fn15) Absent property, trespass cannot lie.(fn16)

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Even if wireless networks were recognized as property, the neighbor's conduct is arguably permissible. Where the Wi-Fi operator has failed to set up a password, the operator seems to implicitly consent to sharing Internet access.(fn17) The Wi-Fi operator seems to consent to joyriding.(fn18) Furthermore, the common law permits a neighbor to use property that crosses onto and interferes with the neighbor's airspace.(fn19) The Wi-Fi radio signals cross over to the neighbor's land, potentially interfering with the neighbor's airspace, so the common law may protect the neighbor's conduct.(fn20) Finally, social policy seems to support the position of the joyriding neighbor. The Internet is a public good, and the law should support any means of allowing as many persons to access it.(fn21) To that end, it is arguable that Wi-Fi radio signals, which travel over government-regulated frequencies,(fn22) should not be subject to private ownership. Wi-Fi signals should arguably be treated as part of a public commons available for anyone's use.(fn23)

Despite these arguments against finding a trespass, recent caselaw dealing with the Internet suggests otherwise. Courts are quickly remolding the age-old trespass-to-chattel doctrine so that it fits the new medium of cyberspace.(fn24) Albeit relatively young, Internet juris

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prudence has espoused the view that electronic signals sent through cyberspace to a physical object may give rise to contact that is trespassory in nature.(fn25) Applying this new doctrine to the Wi-Fi context reveals that a joyriding neighbor likely trespasses when the neighbor sends electronic signals to the Wi-Fi operator's device that transmits data through the Internet a Wi-Fi router.(fn26) Whereas Wi-Fi radio signals are not property, the Wi-Fi router indisputably is. It is a physical object that remains in the possession and control of the Wi-Fi operator.(fn27) Under the reasoning of Internet caselaw, the joyriding neighbor appears to "intermeddle" with the router when the neighbor sends electronic signals through it.(fn28) Because the router is the property under consideration rather than Wi-Fi radio signals the fact that a joyriding neighbor uses Wi-Fi radio signals which cross over to the neighbor's land is of no consequence.(fn29) Trespassory contact appears to occur at the router.

Policy also implies a trespass. The transaction costs of joyriding the possibility of computer viruses and transmission delays outweigh the benefit of permitting joyriding neighbors free access to the Internet.(fn30) In short, joyriding can impose costly consequences on the unsuspecting Wi-Fi operator.(fn31) Moreover, even if these transaction costs did not exist, the joyriding neighbor strips Internet service providers ("ISPs") of economic returns.(fn32) It is likely that some joyriding neighbors value Internet access at a level sufficiently high such that they would subscribe to ISP services were joyriding unavailable.(fn33) To realize a full return on their investment in Internet technology, ISPs must receive payment for their services by anyone who uses it. Pro

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tection of Internet investments favors viewing the neighbor's conduct as a trespass.(fn34)

This Article addresses the question of whether the joyriding neighbor commits an actionable trespass against the Wi-Fi operator. Part II explains how a wireless network functions, and how a neighbor is able to access that network. Part III examines whether the neighbor's conduct satisfies the elements of trespass to chattel, identifying the chattel at issue as the Wi-Fi router. Part III concludes that the neighbor's conduct satisfies the elements of trespass to chattel. Part IV examines the defenses to trespass to chattel, addressing whether joyriding is permissible when a Wi-Fi operator has not password protected the network or when the Wi-Fi operator's network interferes with the neighbor's ability to set up his or her own wireless network. Part IV concludes that neither the absence of password protection nor the presence of Wi-Fi interference should be a defense to the tortious conduct.

II. FACTUAL BACKGROUND

A wireless network allows computers within a local geographic area to share information without being connected by wires.(fn35) Radio signals make Wi-Fi technology possible.(fn36) Wi-Fi radio signals originate from a device called a Wi-Fi router.(fn37) The Wi-Fi router transmits data between computers within the network, and between a modem that is connected to the Internet and a computer within the network.(fn38) In effect, the Wi-Fi router serves as a hub for information exchange between computers within the network and between any network computer and the Internet.(fn39)

Wi-Fi routers operate on frequencies that the government has permitted consumers to use without licenses. Baby monitors, cordless phones, microwave ovens, Bluetooth devices,(fn40) and other wireless d

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evices all operate on the same unlicensed frequencies as Wi-Fi routers.(fn41) To prevent wireless devices from interfering with one another, the frequencies have multiple channels on which a single wireless device can operate.(fn42) Most wireless devices will "listen" for a clear channel before becoming active.(fn43) Thus, a wireless network can experience interference, but technological advances are decreasing instances of such interference.

The range of a Wi-Fi router's signal varies according to its strength in relation to physical obstructions.(fn44) On average, routers can reliably transmit signals over a range of about 300 feet, approximately the size of a football field.(fn45) Physical objects cannot usually impede Wi-Fi radio signals anywhere within this range.(fn46) Hence, data transmission is possible between computers in separate rooms, or even in different buildings.(fn47)

The strength of Wi-Fi radio signals allows a neighbor of a Wi-Fi operator to access the wireless network.(fn48) The neighbor need merely install a wireless network adapter on a computer and place the computer within the range of the Wi-Fi operator's router.(fn49) After the wireless network adapter is installed on the neighbor's computer, the computer can receive Wi-Fi radio signals.(fn50) When the computer locates a Wi-Fi signal, it displays a prompt on its screen, querying the neighbor whether the computer should interface with the wireless net

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work.(fn51)...