A lot of people have talked to me over the last week about Wi-Fi (open and closed, i.e. password-protected) and the Digital Economy bill. The more I try to find answers, the more ludicrous it becomes. For instance, last week it turned out that a pub owner was allegedly fined £8,000 because someone downloaded copyright material over their open Wi-Fi system. Would that get worse or better if the Digital Economy bill passes in its present form?
To illustrate, I'm going to pick my favourite example of a potentially worried wireless network provider: my mum.
She doesn't understand or like the internet, refuses to even think about securing her Wi-Fi network. What is her legal status? What will she say if/when she receives warnings under the Digital Economy bill because someone has used her open Wi-Fi to download infringing files?
Well, the bill contemplates that warnings can be sent only to "subscribers". These include alleged infringers, and those who have "allowed" others to use their access to the internet to allegedly infringe. That sounds a lot like it covers those who operate Wi-Fi networks (and is meant to). Later in the bill, however, a "subscriber" is defined as any person who "(a) receives the service under an agreement between the person and the provider of the service; and (b) does not receive it as a communications provider".
This leaves two avenues of defence for my mum. One: she might say she was a "communications provider" and thus not a subscriber. This is at least arguable under the Communications Act 2003 definition of such, and might get her out of the bill (hurrah). But if my mum is not a poacher, is she a gamekeeper? If not a "subscriber", is she an "internet access provider"? The definition in the bill is that an ISP is someone who provides an "internet access service", itself defined as :
"an electronic communications service that (a) is provided to a subscriber; (b) consists entirely or mainly of the provision of access to the internet; (c) includes the allocation of an IP address or IP addresses to the subscriber to enable that access".
My mum may fit these conditions. (Does she "allocate" an IP address? Who knows? Certainly not my mum.) But is there an "agreement" between her and an unknown Wi-Fi piggybacker? My mum's Wi-Fi has no "I accept" box. "Agreement" is defined nowhere in the bill. But suppose my mum leaves her network unsecured due to ignorance – and the "subscriber"s laptop logs on to the nearest open Wi-Fi network automatically as he sits on the bench outside? In such circumstances, can there truly be "agreement"?
Maybe not, which is good for my mum, but not so good for the government, because it drives a coach and horses through the intention of the bill, which is to ban open Wi-Fi so that it cannot be used as an excuse when (whenever that is) the opportunity comes to repel the unfounded allegations of infringement which generate the warnings. (How my mum could even start to know how to do this without legal aid – which will clearly not be available – is beyond me – but let's leave that for now too.)
A hardened contract lawyer will already be muttering that in English law formation of contract is an objective not subjective matter. If my mum appears to extend a service of internet access, and a downloader appears to accept it, does it matter what they actually think? Isn't this objectively an "agreement"? The Department of Business, Innovation and Skills (DBIS), which is pushing the Digital Economy bill through, would probably like this argument, at least on first thoughts, because it plugs the gaps in the enforcement scheme. But it has big problems of its own. My mum would not be a subscriber, but she would be deemed an "ISP", which would mean she would be bound to comply with sending out of warnings to those users of her service whose IP addresses were passed to her by rightsholders, or else, er, face up to a £250,000 fine for non cooperation.
Even DBIS may grind to a halt at this point. Not only is fining grannies a quarter of a million pounds for not being hip with the internet not going to go down well in Daily Mail land, but it would be impossible for my mum to pass the warnings on: although she may have unknowingly "allocated" her IP address to the "subscriber", she has no way of identifying those who have used her Wi-Fi, and no way to pass those warnings – and the legal responsibility - on.
Let's try a different example. My mum is a dinosaur, let us say. She will be re-educated and her consciousness raised in the great Mandelson Digital Britain future. But the DEB is meant to be a business-friendly piece of legislation so presumably it will work fine for businesses – or will it? Let's think about a big solid business, like McDonalds. McDonalds have a nice well run, password protected Wi-Fi network.
So do many public institutions, like the venerable British Library, which likes to assist scholars and patrons by providing such facilities. In both cases, the Wi-Fi supplier will probably be regarded as a communications provider and hence not a subscriber. In both cases, it is very easy to see this time that an "agreement" is explicitly made between the Wi-Fi service and the recipient.
What happens this time if a passing user logs on, downloads infringing material and a warning is dispatched? McDonalds may cope because its Wi-Fi is provided by The Cloud, which can possibly cope with identifying which user is to get which warnings. It will be fiddly and expensive though and the cost of Wi-Fi to McDonalds would probably go up so much it would be uneconomic to supply. Bang goes a free service which has proved a public boon and a remarkably popular enticement to customers in the ongoing recession.
But if we turn to the British Library, it really bites. The BL is not set up to be a forensic investigator; obliging it to act as one will be a fantastically resource intensive exercise for a public body providing a free service. There is also an issue of privacy and anonymity, something academic researchers are often touchy about. And again, if the BL refuse to comply – or more likely, simply says it can't – it is, at least in theory, subject to a fine up to £250,000.
So we are back again to the death of public Wi-Fi, closed as well as open. Can anyone disprove this train of logic? Because really, I may be a lawyer, but I don't like it any more than you do.
Lilian Edwards is professor of internet law at Sheffield University
Update: corrected - British Library is not open (caption); pub being fined is "alleged" as it would have been civil damages; corrected © to (c) [error introduced by autocorrecting word processor]; minor grammar.
Three articles I want to point out to you that should get you thinking about the future of Wi-Fi:
(1) Andy Abramson’s long and thoughtful piece about sponsored Wi-Fi, sending party pays and the future of media in which he argues:
“Public Wireless” really takes hold, not from the telcos, or even the cable companies, but from the likes of Google, who understand how to monetize “free” better than anyone, and who also have the delivery billing system in place to bill back to a “sender” the same way they can bill back a click to an advertiser. Google, will then work with their “partners” in Clearwire, not to promote 4G WiMax as the pipe, but to use real WiMax in consort with companies like Comcast, Covad and TowerStream to deliver super fast Gigabit wireless to a series of access points around the country, where it then is distributed using WiFi. This is more than a likely scenario as Google has been a pioneer in Public Sponsored WiFi access for sometime, with their Mountain View WiFi network which has been up and running for a few years, surviving the failed Earthlink, MetroFi and other third party operator networks. By blending the “sponsored” public access model as Google has done with “sending party pays” the end user sees little or no cost.
(2) Network World’s eight ways 802.11n changes Wi-Fi
According to Network World, the approval of the 802.11n standard means improved security, higher data rates, better RF and interference management, use of Wi-Fi by devices never before associated with Wi-Fi, connecting to non-WiFi networks, personal area Wi-Fi (e.g. Wi-Fi Direct, which allows a Wi-Fi device such as the iPod Touch to connect directly to another Wi-Fi device such as a printer).
This is nothing new to those of you who have read Ken Biba’s articles on MuniWireless. If you have not read Ken’s articles, click on the links below:
The King is Dead, Long Live the King: 802.11n dramatically improves Wi-Fi outdoors
Real world measurements show muni Wi-Fi networks outperform WiMAX and cellular
(3) What Wi-Fi Direct means for Mac users: Glenn Fleishman has written a very informative article about how the Wi-Fi Alliance’s new Wi-Fi Direct standard greatly improves ad hoc Wi-Fi networking, that is, Wi-Fi connections between two devices (without the need of going through a base station).
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(1) Guide to the WiMAX Band (2.5 GHz): the technology, license holders and future prospects
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Twinkler Software has just released a new BlackBerry application that will prove to be very useful if you’re constantly on the move and are a heavy WiFi user (like me).
WiFi Hero is an application that, once installed, controls when WiFi connections are on/off allowing you to conserve battery life based on where you are or what your BlackBerry is doing. Here’s how it works:
- Location Based. In this mode, WiFi Hero will automatically learn the location of the WiFi Hotspot you are currently connected to, and when WiFi is not connected (you are out of range of this Hotspot), WiFi Hero will automatically turn off WiFi – and when you come back to the same Hotspot location, it will automatically turn on WiFi.
- Screen Status. In this mode, WiFi Hero will automatically turn on WiFi when the screen is on and automatically turn off WiFi when the screen is off – making this very useful when you use your Blackberry to browse the web.
- Charging Status. In this mode, WiFi Hero will automatically turn on WiFi when the device is on charge, and automatically turn off WiFi when device is not charging and on battery power.
- This application is very small (about 12K) and is optimized for battery life.
WiFi Hero will work on all WiFi-enabled BlackBerry devices running OS 4.5 and higher and is available in the store for $4.99 with a free trial available.
Twinkler Software let us know about their latest application called WiFi Hero. This app automatically controls your WiFi Status and helps save your battery. The app works on all OS 4.5+ devices but obviously requires a WiFi enabled device. The cool part is that the app is only 12K so it also saves your memory. I am not sure how the app knows your location but it looks like it remembers your cell tower location… Still waiting for Twinkler to confirm.
The application has three working modes:
- Location Based. In this mode, WiFi Hero will automatically learn the location of the WiFi Hotspot you are currently connected to, and when WiFi is not connected (you are out of range of this Hotspot), WiFi Hero will automatically turn off WiFi – and when you come back to the same Hotspot location, it will automatically turn on WiFi.
- Screen Status. In this mode, WiFi Hero will automatically turn on WiFi when the screen is on and automatically turn off WiFi when the screen is off – making this very useful when you use your Blackberry to browse the web.
- Charging Status. In this mode, WiFi Hero will automatically turn on WiFi when the device is on charge, and automatically turn off WiFi when device is not charging and on battery power.
Check it out for $4.99 at this link in the store. The options for the app are under the main BlackBerry options menu.
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