I’ve often written in regards to the open-wifi defence. No more so when it pertains to allegations of filesharing when infringing material is being shared. I am fully expecting the UK to push through a law (“unthrottled” of course because the Government will give in to Hollywood et al and their pressure).
I am awaiting the day when we see the creation of an offence “Failure to take reasonable steps to secure your WIFI”. We already have a semi-similar law in the UK that says if you leave your keys in the car with the engine running, you commit an offence, so legislating against WIFI and insecurity would not be such a surprising move. Of course it will be win-win for government who will scoure the streets locating connections and sending out penalty notices for “offenders”. I am convinced this is coming.
Perhaps a prelude to my prediction (and certainly in the mind of this particular lawyer) it has been reported on Techdirt that a case has been put to a US court citing:
Defendant had a duty to secure his Internet connection. Defendant breached that duty by failing to secure his Internet connection.
Reasonable Internet users take steps to secure their Internet access accounts preventing the use of such accounts for an illegal purpose. Defendant’s failure to secure his Internet access account, thereby allowing for its illegal use, constitutes a breach of the ordinary care that a reasonable Internet account holder would do under like circumstances.
I could add a witty retort there and say that if this type of claim ever passed as law, then Windows users would be immediately guilty as anyone who wants to take reasonable steps to secure their Internet usage should not be using Windows.😉
On a serious note though, it does ask many important questions. Tell me what you think reasonable steps are. The simple answer is that its imposible to quantify and can only do on a case per case basis, which makes it open to much interpretation.
“Defendant’s failure to secure his Internet access account, thereby allowing for its illegal use,” – So what about if you forgot to lock your car, it was stolen and then used in a robbery? Would the owner be accountable there? and its only be looking at the statement outside of a virtual world that the impossibility of ever satisfying that can ever be achieved. Why are you not switching off your router when not in use? Why are you not changing your router password every week? Why are you not monitoring your connections for unexplained transfers or why is your password only 8 chars, it should be 16. Where are the use of capitals and numbers….the list goes on ad-infinitum.
“reasonable Internet account holder” – I’d suggest a reasonable internet account holder is not so bothered how they connect to the net and worries more about their online passwords for banking which they do take precautions with. I wonder if a reasonable internet account holder even understands what bittorrent is, what a swarm is or indeed their IP address. For them, they are concerned with services they use online, not the method they use to get there.
The claim above appears in a filing over a copyright infringement matter which can be found here: http://copyrightclerk.com/2012/09/27/ruggiero-argues-negligence/ and whilst it makes interesting reading, I think this is a snapshot of future legislation. I am certain we will have an offence to cater for this very soon. Even quicker if the USA goes down this root. And then what? Liability for failing to tidy your front garden when a stray stick is picked up and used to assault another? – Far fetched? Maybe not.