Posted by Orin Kerr:
Crime to Use Coffee Shop Wi-Fi Without Entering the Coffee Shop?:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1179938755
[1]CNET news has a story of a Michigan man who apparently pled guilty
to violating Michigan's computer crime statute for sitting outside a
coffee shop and using the shop's wi-fi to surf the web:
Each day around lunch time, Sam Peterson would drive to the Union
Street Cafe, park his car and--without actually entering the coffee
shop--check his e-mail and surf the Net. His ritual raised the
suspicions of Police Chief Andrew Milanowski, who approached him
and asked what he was doing. Peterson, probably not realizing that
his actions constituted a crime, freely admitted what he was doing.
"I knew that the Union Street had Wi-Fi. I just went down and
checked my e-mail and didn't see a problem with that," Peterson
told a WOOD reporter.
Milanowski didn't immediately cite or arrest Peterson, mostly
because he wasn't certain a crime had been committed. "I had a
feeling a law was being broken," the chief said. . . .
Milanowski, who eventually swore out a warrant for Peterson,
doesn't believe Milanowski knew he was breaking the law. "In my
opinion, probably not. Most people probably don't."
Indeed, neither did Donna May, the owner of the Union Street
Cafe. "I didn't know it was really illegal, either," she told the
TV station. "If he would have come in (to the coffee shop), it
would have been fine."
Peterson was charged and apparently pled guilty and was sentenced
for violating Michigan's computer crime statute. According to [2]this
story, Peterson's actual punishment was very light: he was given a
$400 fine and 40 hours of community service, with the understanding
that if he stays out of trouble the conviction will be erased from his
record.
But did Peterson actually commit a crime? The answer hinges on
Michigan's somewhat unique computer crime law, and in particular on
its definition of the meaning of "authorization." Like every state --
and like the federal government -- Michigan has an unauthorized access
statute that serves as the basic computer crime law. (For my take on
these statutes, [3]see this article.) Here's Michigan's law, Section
752.795(a):
A person shall not intentionally and without authorization or by
exceeding valid authorization . . . Access or cause access to be
made to a computer program, computer, computer system, or computer
network to acquire, alter, damage, delete, or destroy property or
otherwise use the service of a computer program, computer, computer
system, or computer network.
So far, this is a pretty standard unauthorized access statute. But
Michigan does something that is pretty unique; it actually has a
presumption against access being authorized.
It is a rebuttable presumption in a prosecution for a violation of
section 5 that the person did not have authorization from the
owner, system operator, or other person who has authority from the
owner or system operator to grant permission to access the computer
program, computer, computer system, or computer network or has
exceeded authorization unless 1 or more of the following
circumstances existed at the time of access:
(a) Written or oral permission was granted by the owner, system
operator, or other person who has authority from the owner or
system operator to grant permission of the accessed computer
program, computer, computer system, or computer network.
(b) The accessed computer program, computer, computer system, or
computer network had a pre-programmed access procedure that would
display a bulletin, command, or other message before access was
achieved that a reasonable person would believe identified the
computer program, computer, computer system, or computer network as
within the public domain.
(c) Access was achieved without the use of a set of instructions,
code, or computer program that bypasses, defrauds, or otherwise
circumvents the pre-programmed access procedure for the computer
program, computer, computer system, or computer network.
If I had been Peterson's attorney, I would have had a bunch of
arguments in his defense. First, I would argue that having a statutory
presumption is unconstitutional under [4]Sandstrom v. Montana, 442
U.S. 510 (1979). A material element of a criminal statute has been
satisfied violates the Due Process clause, which requires the
government to provde each element beyond a reasonable doubt. Id. at
524. Second, I would argue that even if the presumption is
constitutional, it doesn't apply here: under (c), "[a]ccess was
achieved without the use of a set of instructions, code, or computer
program that bypasses, defrauds, or otherwise circumvents the
pre-programmed access procedure for the computer program, computer,
computer system, or computer network." And finally, the access was not
unauthorized or in excess of authorization because the coffee shop
intentionally made the wi-fi available to anyone. What's the rule --
no hopping on wifi from a coffee shop unless you enter the shop?
Unless you actually buy something? What if you're outside waiting for
a friend to join you for a latte, but you haven't gone in yet? Where
do such rules come from, and what notice does a defendant have before
being held criminally liable?
As best I can tell, though, these arguments weren't tried. But then
it's hard to tell from the news articles, which seem pretty sketchy on
the legal side of this. If you happen to know more details about the
case, please consider leaving them in the comment thread.
References
1. http://news.com.com/8301-10784_3-9722006-7.html
2. http://www.woodtv.com/Global/story.asp?S=6546307
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=399740
4.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=442&invol=510
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