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Open WiFi Owners Off the Hook In Germany

Posted by timothy on from the gefehlt-mir dept.

ulash writes "Ars Technica reports that a court in Germany ruled in favor of an open WiFi network owner stating that if other users use your open WiFi network without your consent and download copyrighted material, you cannot be automatically held responsible for their actions. This does not carry much (if any) weight in the US but here is to hoping that it will at least have a positive impact in the EU as starters."

28 of 215 comments (clear)

  1. Hmmm... by darklich14 · · Score: 5, Interesting

    Do taxpayers get reprimanded for drug trafficking done on roads their tax dollars pay for? So why should someone providing network access be reprimanded for illegal action done by someone else on their connection? Who knows.

    1. Re:Hmmm... by davester666 · · Score: 5, Insightful

      Sure it makes sense, otherwise all the ISP's become responsible for the child pornography flowing over their pipes. Unless there are different rules for corporations than for individual citizens. There aren't, right?

      Anyway, rulings like this is why the MPAA and RIAA are busy trying to get governments around the world to remove any kind of 'safe harbour/transport' provisions from their laws, both under the guise of saving the children as well as saving that small band/filmmaker at home, whose work is being mercilessly pirated by every Tom, Dick and Harriet around the world.

      --
      Sleep your way to a whiter smile...date a dentist!
    2. Re:Hmmm... by Anonymous Coward · · Score: 3, Interesting

      The problem here is that you need someone else to admit using your connection to download illegal files - just like if someone else is driving your car and gets caught in a speed trap. If he doesn't admit, you will have to pay the ticket.

      Having an open WiFi won't be a freeride to download illegal files as it is impossible to proof that it was open to begin with.

      So just like getting a speeding ticket (by mail), where you can check a box that someone else was using your car (in Germany anyway + you have to provide name and adress), future letters regarding copyright violation might have the same check box.

    3. Re:Hmmm... by Anonymous Coward · · Score: 4, Insightful

      It is likely that I know the person in the photo who was driving my car.

      It is not likely I know who connected to my wireless router.

    4. Re:Hmmm... by LordVader717 · · Score: 4, Insightful

      Why should the opertor of the network be forced to enforce the law? They should cooperate with law enforcement officers, help them when possible and implement guidelines, but policing the network is not something I would like to trust a private company wit.

      We have public officials in charge of airport security and police on private roads, why should Internet traffic be different?

    5. Re:Hmmm... by VdG · · Score: 3, Interesting

      It doesn't make it clear in the article whether there was actual evidence that someone else had used the guy's network, or whether that was just a possibility. That makes quite a difference, I think. It makes sense to me that people should not be required to secure their networks, any more than they're required to lock their homes. But I'd also think that you'd have to have at least a smidgin of evidence that someone was using your unsecured network for their nefarious deeds if you were to get off.

      On a slightly different track, whilst one is not generally required to lock one's front door, (although don't count on getting insurance if you don't), I think I'm correct in saying that in some places there are things you ARE required to secure. I'm thinking in particular of firearms: don't some states require gun owners to keep them secured? Certainly some places outside the USA do. It wouldn't be much of a stretch to extend that principle to other resources with which people could commit crimes, or inadvertently come to harm.

      Of course, you'd then have to define how much security is required. Just a token effort? Or something which could actually withstand a concerted effort to gain access? One key difference between a house and a WiFi network is that it's difficult to enter someone else's house inadvertently, whereas many computers will connect to an open network automatically, or needing no more than a slip of the finger when choosing which network to use.

      Could we see a requirement to log access to a wireless network, like an ISP? If you're deliberately running an open network then you are effectively acting as an ISP for all and sundry. Should you be subject to the same regulation?

    6. Re:Hmmm... by Stooshie · · Score: 3, Interesting

      ... By law you are required to know who is in control of your car, their name, adress etc ...

      So, what you are saying is, if your car is stolen, you get charged with not knowing who was driving it? I hope you were being sarcastic.

      --
      America, Home of the Brave. ... .and the Squaw.
    7. Re:Hmmm... by richlv · · Score: 4, Insightful

      With a wi-fi router you at least have the means available to you to (try to) prevent other people from using it, assuming you have the requisite knowledge.

      but why should i ?
      that's a sharing. sharing some resource, some knowledge or whatever.
      i'd compare this to hitchhiking. if you take a hitchhiker who happens to be in the posession of something illegal, should you be held responsible ?

      --
      Rich
    8. Re:Hmmm... by HungryHobo · · Score: 4, Interesting

      If I have a second home which get's broken into while I'm away and is used by the squatters for a mail scam am I liable for what they do?
      The packets are coming from my house with my return address yet I'm not the one sending them.
      (equivilent to someone hacking your network)

      If I lock my door but there's a lose window people can get in should I be a criminal for not securing it properly? (kinda like using WEP)

      If I'm just a hippy who doesn't believe in locking my door because "it's like.... a barrier to people man." should I be subject to the same regulation as hotels,hostels and landlords?

    9. Re:Hmmm... by Zemran · · Score: 4, Funny

      I have also heard that paedophiles take children to hotels so we should ban children from hotels and often they take them to restaurants first, so we should ban children from restaurants as well. I am sure that with a bit of lobbying I could get a quiet life out of this...

      --
      I love stacking my barbecues in the shed at the end of summer - you can't beat a bit of grill on grill action.
    10. Re:Hmmm... by HungryHobo · · Score: 3, Funny

      I think strict regulation requiring cameras in every room and a special inspector in every hotel who checks everyone entering for pedophilic tendencies is the only answer.
      Hotel owners and landlords should be charged with rape if they allow someone to rent a room who later has sex with a minor in there.
      it's for the children after all.

    11. Re:Hmmm... by phoenix321 · · Score: 3, Insightful

      The usual analogy collision between cars and the digital world.

      Your car is a costly, potentially lethal piece of machinery. That's why you lock the doors and have a anti-theft device installed. If it gets stolen it is gone and you probably know that it's missing within a few days.

      Your Internet connection is a cheap commodity and you may never knew if someone used your connection without your consent. Sure it may "kill music!!!11eleven" and you gotta "think of the children" but it's not terribly dangerous to leave the router open. That's why many people do.

      Most cheap routers have a fixed log size or don't keep the logs when powered off. You have no chance at all to prove it was someone else using your connection just as the court has no chance at all to prove it was you. As long as the courts honor "In dubio pro reo", you're pretty much safe unless of course you have plenty of knowledge of networks or a PhD in computer science. Then you're hosed because you surely knew what you were doing...

    12. Re:Hmmm... by IBBoard · · Score: 4, Insightful

      I think I'm correct in saying that in some places there are things you ARE required to secure. I'm thinking in particular of firearms

      That's a bit of a stretch! Firearms are, by definition, dangerous weapons. Their purpose is to be dangerous - they have no other sensible use. The reasons why anyone should ever need a firearm of their own or why it is considered sensible for a common civilian to have one is another matter, though.

      A more sensible comparison is either an external mail box, a cordless phone left in the garden, or similar communication measures. Someone can start using your mail box and picking things up before you do just because it's easily accessible, but does that make you responsible for what they might get delivered to your house? Or someone sees you've left your cordless phone for your landline in the garden. If they call some terrorist friends (since they're the "hot group" of the last seven years to scare people with) and organise some terrorist event then how responsible are you, legally, that they saw an opportunity and took it?

      As for logging stuff, try getting your standard Netgear router to log a sufficient level of detail. Yes, it might log connections and attempts on blocked ports, but no-where near what the police would require to be useful to meet the regulations.

    13. Re:Hmmm... by VdG · · Score: 3, Interesting

      I don't know. And I'm not advocating that these sorts of controls should be put in place, merely suggesting that some people might like them to be.

      If I own some woodland, then I think that in the UK I have a responsibility to ensure that if it's accessible to the public - even if they're not actually invited - that there's nothing too dangerous lying around. No bear traps, for example. If I make an effort to keep people out then my responsibility is reduced.

      IF one accepts that the Internet can be dangerous, then someone (not me) could try to make a case that people providing access to it have some sort of duty of care.

  2. Nice loophole by Anonymous Coward · · Score: 5, Insightful

    Step 1:get wifi router and leave it open
    step 2:use other people's wifi
    step 3:instant immunity for all

    1. Re:Nice loophole by Jezza · · Score: 4, Insightful

      So if I borrow your ladder, use it to get into someone's house, you should be held partly accountable. Don't be silly.

      This might make it easier to do "bad things" and not get caught,but that fact alone cannot make the owner of the open router liable. That's just silly!

    2. Re:Nice loophole by Jezza · · Score: 3, Insightful

      Only if I tell you what I'm doing with the ladder.

  3. Precedent by Misanthrope · · Score: 3, Interesting

    What sort of precedent does this set with regards to other forms of illegal activity that take place over an open wifi connection? Does anybody have more experience with German case law? Fritz-sixpack might be off the line for copyright infringement, but what about some "think of the children" crime?

    1. Re:Precedent by Stooshie · · Score: 3, Insightful

      ... The nature of the crime doesn't affect the legal argument. ...

      Unless it's terrorism ;-)

      --
      America, Home of the Brave. ... .and the Squaw.
  4. Re:Malicious Intent by Architect_sasyr · · Score: 4, Funny

    Does that make WEP like standing there with clear pants on? Technically your ass is covered...

    --
    Me failed English...
    FreeBSD over Linux. If my comments seem odd, this may explain...
  5. You forgot to add by koinu · · Score: 5, Insightful

    one interesting fact. You are only off-hook if you didn't know that your wifi can be used by someone else (this was the case here). If you are offering wireless LAN access to people for free, you still can and WILL be hold responsible when anyone of your users commits a crime. You don't have rights like ISPs have.

  6. But they still have to foot the bandwidth bill by dynchaw · · Score: 3, Interesting

    All well and good for prosecution immunity, but why would anyone keep an open access point these days?

    I live on a main street with many business people walking past with their WiFi enabled devices. If I didn't have my access point locked down hard they'd blow my bandwidth limit inside a few days.

  7. A rape in my house by Anonymous Coward · · Score: 3, Insightful

    Finally some common sense from the courts. If I leave my doors unlocked, as I often do, and someone comes into my house and commits a rape there, why should I be held responsbile?

    In the US the lobby's are so powerful that common snese goes out the window. If something could be used as an excuse, it doesn't matter if the excuse is valid or not, the excuse itself must be removed.

    At least Germnay is showing some sense here.

  8. Re:Law nightmare by Jezza · · Score: 4, Insightful

    I've got two words for you:

    "Computer Forensics"

    (I would remind you that you need to use a computer to access the WiFi, and that your misdeeds will leave evidence there)

  9. Data laundering by dontmakemethink · · Score: 3, Interesting

    What's to stop hackers from setting up open wifi networks with poor security, hacking their own networks to perform criminal acts, then claiming that someone else did the hack and they aren't liable for what others do over their open wifi?

    Mobs have been laundering money thanks to ignorant loopholes like this for over a century!

    --

    War as we knew it was obsolete
    Nothing could beat complete denial
    - Emily Haines
  10. Re:Negligence is not a defense by Jezza · · Score: 4, Interesting

    Negligence?! You're kidding right?

    If you look at it this way you'll kill WiFi. Imagine I own a coffee shop (hell this is the Internet - for all you know I do) and I want to provide WiFi to get laptop toting punters in (access could be paid for or free - it matters not). How do I do this without opening myself up to some lawsuit? Don't be silly, if some patron downloads a song while sipping an expresso in my coffee emporium, the he (or she) is responsible for that, not me, just trying to scrap a living selling caffeinated hot beverages.

    (Right I'm off to put the kettle on - there's punters here!)

  11. Spoof the MAC adress by houghi · · Score: 3, Interesting

    I can now just spoof a MAC adress, download as crazy and tell them it wasn't me.

    With truecrypt they can't even see what I have downloaded and saved.

    --
    Don't fight for your country, if your country does not fight for you.
  12. Re:1 sentence by totally+bogus+dude · · Score: 3, Insightful

    Uh, everyone? Or do you really believe that you're the only person in the world that would think of doing bad things using a "hidden" computer?

    Next you'll be telling me that people who commit fraud use fake names and addresses and the police have no idea and absolutely no way of tracking them down.