Trespassing Through Cyberspace: Should Wireless Piggybacking Constitute a Crime or Tort Under Louisiana Law?

• Author: Grant J. Guillot
• Pages: 389-415

The author would like to thank Professor Ron Scalise for his invaluable time, guidance, and feedback. He would also like to thank Professor Bill Corbett for his assistance with this Comment. Finally, he would also like to thank his wife, Amber, for constantly reminding him to make sure he is connected to his own wireless network.

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I Introduction

Imagine sitting inside your car while it is parked in the vicinity of a coffeehouse. Awaiting several important e-mail messages, you decide to pull out your laptop computer to access an unsecured wireless network. Ten minutes later, a policeman knocks on your window and tells you to step out of the car. For reasons you do not comprehend, you are under arrest for violating a criminal statute. By accessing the coffeehouse's network as a non-paying customer, you have subjected yourself to criminal liability. You will likely be required to pay a fine or even serve time in jail. You must face these criminal ramifications despite the fact that the coffeehouse could have secured its wireless network, thereby preventing non- paying customers from accessing it.

This scenario may seem astonishing and unlikely, but it actually happened to a twenty-year-old Washington man just last Page 390 year.¹ In fact, within the past two years, in at least five states, individuals who accessed unsecured wireless networks without permission have been arrested and charged.² Although no such event has occurred in Louisiana, the legislature and courts of this state should anticipate that "wireless piggybacking" will become a growing concern in both the criminal and civil context.

As computerized technology continues to evolve, an increasing number of individuals and businesses utilize wireless Internet networks instead of relying on land-based connections.³ In fact, many United States municipalities are in the process of, or have strongly considered, providing free or low-cost wireless Internet services for their residents.⁴ Furthermore, most laptop computers are now manufactured with built-in wireless technology that automatically gathers a series of wireless networks from which a user can choose a connection or to which the user is immediately and involuntarily connected.⁵ Although Americans continue to embrace wireless networks in increasing numbers,⁶ the law governing this technology remains obscure.⁷

Wireless piggybacking, or "war driving," is the practice of "searching for a close unsecured wireless network, connecting to Page 391 it, and surfing the web through it."⁸ Although several states and other nations have brought wireless piggybacking within the scope of their pre-existing criminal statutes,⁹ none have recognized a civil remedy available to victims of wireless piggybacking. The Louisiana legal community thus far has not investigated whether wireless piggybacking constitutes a criminal offense or tort. With the ever-increasing use of the Internet and wireless technology, it is very likely that Louisiana courts will have to examine the cyberspace legal interests of the state and its Internet subscribers in the near future.

This Comment asserts that Louisiana, following in the footsteps of other states, will likely apply its criminal statutes to wireless piggybacking when faced with this issue. However, Louisiana's state courts will probably conclude that the unauthorized use of wireless networks does not fall within the scope of the state's tort laws. Given that other states have not yet applied their tort laws to wireless piggybacking, it is unlikely that Louisiana courts will choose to do so in the near future.

Part II of this Comment explores the increasing use of wireless networks, the issues raised by wireless piggybacking, and the concept of cyberproperty. Part III investigates recent multi-state and international developments regarding the unauthorized accessing of wireless networks. Part IV examines the utility of applying Louisiana's criminal statutes to wireless piggybacking while noting the issues raised by the attempted application of state tort law to this activity. Part V provides a brief conclusion.

II Background

A The Wireless Network Explosion

Wireless local-area networks, also known as "wireless-fidelity" networks or "Wi-Fi" networks, allow individuals to access the Internet via "radio or infrared frequencies on the unlicensed 2.4 and 5 GHz radio bands."¹⁰ Access to these networks is often Page 392 available in private locations such as businesses and residences.¹¹Public areas called "HotSpots" also provide access.¹² These HotSpots include locations such as coffee shops, airports, and hotels.¹³ In fact, several websites offer wireless users detailed maps that identify these areas across the country and even abroad.¹⁴Moreover, city governments are taking increasing interest in providing their citizens with free wireless access, as evidenced by the fact that more than $230 million was spent on wireless-related municipal projects in 2006.¹⁵ In the wake of Hurricane Katrina, New Orleans was the first major city to consider providing free wireless Internet access to its residents.¹⁶

With the expansion of wireless availability in Louisiana and the other forty-nine states, more Americans have begun to access Wi-Fi networks instead of connecting to the Internet using a land- based connection. One survey predicted that Wi-Fi use in private residences will increase from approximately 9 million in 2004 to about 28 million in 2008.¹⁷ Additionally, experts in the field estimate that by 2008, approximately 22 million Wi-Fi users will access the Internet from over 53,000 HotSpots across the nation.¹⁸These statistics reveal that Americans have already integrated Wi-Fi technology into their lives and will continue to do so at an increasing rate. Page 393

Most Internet subscribers who install and use wireless technology have the ability to prevent unauthorized use of their network by securing it with a password.¹⁹ Yet, Jupiter Research conducted a survey last year and determined that 40% of the population either had not activated the security mechanisms on their wireless networks or was not sure if they had done so.²⁰Furthermore, many older Wi-Fi systems cannot easily be secured with safety mechanisms such as passwords, and newer systems can be difficult to secure if the user is running more than one computer on the network, which is often the case.²¹

B Issues Raised by Wireless Piggybacking

As the number of Internet subscribers who use wireless technology continues to rise, the number of wireless piggybackers will certainly increase. One study reported that 14% of Internet subscribers admitted to accessing their neighbor's Wi-Fi network without permission, though far more people probably have done so.²² While some experts in the field insist that the unauthorized use of Wi-Fi networks is harmless,²³ others call attention to serious concerns raised by wireless piggybacking.²⁴ Although one policy analyst described wireless piggybacking as "the Twenty-first century equivalent of lending a cup of sugar,"²⁵ wireless piggybacking raises significant problems.

First of all, the Internet subscriber who utilizes an unsecured wireless network may be held liable for any illegal actions undertaken by a piggybacker using the subscriber's network.²⁶When a piggybacker accesses websites using the subscriber's wireless network, the Internet Protocol address (or IP address) of the webhost of each site he visits is imported into the network, Page 394 leaving a record of the visited websites.²⁷ Consequently, the websites are immediately associated with the subscriber.²⁸ For example, a piggybacker could utilize an innocent subscriber's network to illegally download copyrighted files.²⁹ These actions could attract the attention of copyright workers who may bring suit against the subscriber, having traced the illegally downloaded file(s) to the subscriber and not the piggybacker.³⁰ Similarly, a subscriber may be held criminally liable for the actions undertaken by a piggybacker using the network to view child pornography or to engage in other illegal activities.³¹ As explained by an attorney specializing in computer-related legal issues:

[C]ybercriminals, knowing that they could be traced back to their accounts using IP addresses, sit in their car on your street using your open access. When the FBI comes looking for the person downloading movies or child pornography, or luring children or sending denial-of-service attacks, they come looking for the person whose account was used, not the car driver. While you may be able to prove that your computer wasn't used for these illegal activities, or that no one was home at the time the activities occurred, it can be very tricky. It's far easier to secure your network with a passphrase.³²

Second, and more commonly, wireless piggybacking can cause a subscriber's network to suffer a diminution in performance.³³ By accessing the subscriber's wireless network, the piggybacker consumes bandwidth and, consequently, may slow down the connection and complicate the subscriber's ability to access and utilize his own network.³⁴ While a subscriber may not suffer much inconvenience from the actions of one wireless piggybacker, he may begin to notice a reduction in Wi-Fi performance once multiple piggybackers start accessing his wireless network.³⁵Furthermore, one unauthorized user can greatly interfere with the Page 395 subscriber's network by downloading very large files or by simultaneously downloading several small files.³⁶

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