Thursday, May 24, 2007

Could checking your email be a felony?

Sledgehammers kill mosquitoes. If you see a mosquito on your wall and swing a sledgehammer at it, and successfully hit it, you will kill it. No doubt you will smash the wall in the process. If the mosquito escapes and you have to keep swinging each attempt to kill it will impose lots of damage. In general sledgehammers are not good ways to kill mosquitoes.

Politicians are notorious for using sledgehammers. Bad politicians in particularly love sledgehammers. Now you wouldn’t use a sledgehammer in your house to kill a bug and the reason is quite simple: it’s your house. You pay the cost of the damage yourself. Politicians can inflict damage and pass the costs on to other people. They are like exterminators who feel their only mission is to kill pests and don’t mind using sledgehammers, or even wrecking cranes, because they find these methods really do kill bugs. Of course they do. But the costs are all out of kilter compared to the benefits.

But politicians see things as if they receive the benefits and you pay the costs. So if they “solve” a problem with a sledgehammer they will crow about solving the problem and ignore the costs. They will brag about how they “did something” and how it “was urgent”. “Drastic” solutions were necessary. Why are is it that everything the government sets out to solve is an “urgent” problem? Simple: politicians are usually in office for two to six years at most. They always have election campaigns coming up. What is urgent is rarely the problem. What is urgent is their reelection and access to the government gravy train for another term of office.

One example of swatting mosquitoes with sledgehammers is the case of Sam Peterson of Sparta, Michigan. Sam would drive by the Union Cafe, park for a few minutes and check his email on his laptop. The Union Cafe, like many coffee shops provided unsecured wireless internet access to their customers. Of course they also knew that by providing that unsecured service that anyone in the immediate vicinity could also use it.

Police Chief Andrew Milanowski saw Peterson and questioned him about why he was sitting in a parked car. Peterson didn’t think he was doing anything wrong so he said he was just checking his email. The Chief accepted that and left but then he started wondering if this might be illegal.

Well, these days if you imagine something could possibly be illegal it usually is. And the Chief hit the jackpot. Sam wasn’t just a criminal under Michigan law but a felon. Now felonies are consider serious matters. And in Michigan the politicians thought this a very serious matter indeed. Sam could have gone to prison for five years and paid a $10,000 fine.

Now generally the punishment of a crime is supposed to fit the nature of the crime. In this case it is considered theft. But this sort of theft is different from most theft. If you steal a car you deny the owner the use of the property he purchased. But Peterson didn’t actually deny the “owner” the use of her property in any meaningful sense.

Of course you might impose a cost. But then again you might not. It really depends on the circumstances of the service contract of the individual. I have wireless in my apartment whic is a flat rate service that is available 24 hours per day. If someone else uses it I don’t lose anything. If no cost is imposed is it theft? Under Michigan law apparently it could be.

Even if the cafe didn’t have a flat rate the costs imposed by Peterson would be relatively low. And the cafe could put an end to the use of their wireless instantly, if they so wished, at an extremely low cost to themselves -- just a couple of minutes of their time to set the system to secured is all that is necessary.

So why didn’t they do that? Because they didn’t want to. Offering “free” wireless service attracts customers. Lots of places offer this knowingthat some people will use it who won’t be customers. This happens in the business world all the time.

The typical fast food restaurant has toilets for their customers. And everyday non-customers in dire need rush in and use the facilities without buying anything. Shopping malls have water fountains for thirsty customers which are frequently used by people who stop in and look around but purchase nothing.

Consider Ikea, the furniture giant. They offer all sorts of amenities to customers knowing that non-customers use those services.

When a business offers free services to the public it assumes that this will profit them in the long run. They recognize that some people will misuse it. Some people will use the toilets who don’t spend money. Some people will drink from the water fountain who aren’t spending anything. And some people will check their emails. This is calculated into the costs and the “free” services are offered anyway.

That makes it doubly difficult to consider what Sam Peterson was doing as theft. Even the cafe owner says she had no idea he was breaking the law. Here is one odd crime indeed.

One report notes that the only way that someone gets arrested is being caught red handed. As the local prosecutor said: “Ninety percent of the time we couldn’t know, frankly, that it’s going on.” Not even the “victim” apparently knows they are being victimized. And the victims often make the service widely available to the public intentionally.

Cafe owners realize that now and then someone will walk in and sit down and use the service without actually ordering anything. I’ve seen that happen at coffee shops on numerous occasions and the owners usually just ignore it. It is allowed because the owners feel the benefits outweigh the costs.

Exactly why do we need the state stepping in here? If the owner is worried he can take easy steps to prevent it. Is this “stealing” of a freely offered service any worse than “stealing” the use of toilets, water fountains or having a cheap lunch at IKEA?

What is particularly odd is that politicians, always needing to meddle, have forced places like cafes to provide free services. In Arizona the law says a restaurant has to give free water to anyone who asks for it, customer or not. That probably costs more than checking one’s email. Public access to toilets are often mandated as well.

In Westchester Country, New York the politicians “said it’s up to WiFi subscribers to protect themselves against piggybackers.” Well, that almost sounds reasonable but of course there is a catch: “Businesses were told to secure their networks or pay a fine.”

See what I mean about how politicians can’t stop meddling. Why should the business pay a fine? If they wish to provide free internet access to the public, and refuse to secure their network, why are they being punished? Yet in other places politicians are taking money from taxpayers to provide free internet access to the public.

There is the old joke about the Soviet Union where anything not forbidden is mandated. That is the view of most politicians. On one hand they force people to provide free services and on the other they make it a crime. Seems to me that the best solution is to allow WiFi users to take precautions if they wish or ignore them if they wish. If they ignore them the costs are their own. Now if a secure server is hacked that is a different thing entirely. It is then clear that the property owner doesn’t want the public using the connection. It is similar to restaurants that have signs saying “toilets for customers only”.

It isn’t even that the politicians or cops are concerned about the cafe in this case. The claim is that Peterson was stealing “service” from the cafe. Yet he doesn’t pay the cafe a dime in restitution even though they were the supposed victims. Because it was his “first offense” he was ordered to pay a $400 fine and give 40 hours of “community service”. So the government collects $400 and 40 hours of slave labor. The cafe gets nothing. Everything, the fine and forced labor, goes to the state.

One could argue that the cafe made the WiFi available intentionally knowing it could be accessed outside the cafe as well as inside. If they did so then could it be considered theft? Sure Peterson didn’t ask the owner. But I’ve been in coffee shops where everyone is sitting around with laptops open on the internet and no one explicitly asked permission. Sometimes there are signs announcing the service but often there is no indication at all. In many places it is just assumed the cafe will have it.

It gets even messier with outdoor cafes. There was one cafe near where I lived that had all tables outside (obviously this was in a warm climate). There was no actual building in which you sat. The most you expected was an umbrella to keep the sun out of your eyes. And they had internet access open to their customers. There isn’t even a clear demarcation between the cafe and the sidewalk since the tables were on the sidewalk.

Must permission be explicit or can it be implied? If explicit then the Michigan cops ought to sit undercover in a cafe. I can promise you they will find that none of the customers thought of asking permission before connecting. One could argue the implied permission is for customers. But if a cafe doesn’t chase out people who sit down and connect then isn’t it implying that they don’t mind if non-customers use it? Surely the toilets in restaurants fall into a similar category yet we don’t arrest non-customers for theft of toilet services.

My laptop uses wireless. And my email program is set to download emails every few minutes. One time I parked in my parking spot and opened my laptop to check something. Then I heard the signal that an email I had written was just sent. Apparently I had picked up a WiFi signal from somewhere and inadvertently used it. This has happened numerous times that I know of and probably several times when I was unaware. Was I committing theft? Again this illustrate the odd nature of this theft. There can be cases where neither the thief nor the victim know anything was stolen.

There does seem to be a simple solution and it doesn’t require politicians or cops. That means it is not one they would favor as they want us to believe that life without them would be unbearable. The law should be simple. A WiFi user has the option to make their line secure or not. If they make it secure and it is hacked a crime is committed. If they don’t make it secure and it is used, intentionally or inadvertently, the assumption is that it was open for public use by the choice of the owner and no crime is committed. If a crime is committed then the person committing the theft should pay court costs, investigation costs and police costs. And the court can levy a fine on them which ought to go entirely to the victim of the hacking not to the state.

I think it is rather sensible to handle it that way. That means it is unlikely to appeal to politicians.