Michael Froomkin - U.Miami School of Law wrote:
2. If I provide access to four or five friends, I am not an ISP and in
fact I am responsible if they use my connection to do something illegal
since I am the customer of record. If you loan your car to an
unlicensed driver and he kills someone, you are on the hook.
The key word above is "unlicensed". And the other key word -- not
present -- is "knowingly". But the analogy breaks down because you
don't need a license to use the Internet. Consequently, in most cases
you will not know, and cannot reasonably be expected to know, about
legal violations. If you let your buddy use your home wireless while
he's staying with you for the weekend, and he commits, say, a fraud,
or blackmails someone, you are not legally responsible for any of it
unless you participated knowingly in some way. Of course, that you
didn't know may be hard and expensive and unpleasant to try to prove,
but that's a different question.
Ummm... you might be liable under your service agreement with your ISP.
Most of these have all kinds of restrictive clauses re. not letting
others use your connection, copyright infringement, assumption of
liability, yada, yada, yada. We all violate these, all the time, but
there are times when that might catch up with someone.
The term "criminally negligent" really has no role here. Negligence is
in most cases a civil not a criminal offense. There are specific
crimes. There is aiding and abetting. There may be criminal
negligence in unrelated cases where you have a duty to secure
something or protect (or not harm) someone and fail to do so (e.g. you
leave your car in a position to roll downhill and it hurts someone, or
you are willfully blind to a danger to child for whom you should be
caring, or you act with such inattention so as to kill someone). But
in the USA ***you have no legal duty to secure your wireless***.
None. You can leave it open, just as you can leave your window open
and let people enjoy what you are playing on your stereo (modulo
public nuisance law, and copyright rules against some types of
unlicensed public performance). Thus there can be no negligence in
leaving it open, at least absent specific knowledge that a person
intends to do a specific thing.
You may have a civil liability to secure your wireless under the
terms-of-service agreement with your Internet provider. Well, maybe not
to "secure your wireless" but to prevent unauthorized use of your
connection to the service provider - which could be accomplished in
other ways.
Miles Fidelman
--
In theory, there is no difference between theory and practice.
In practice, there is. .... Yogi Berra
