The Volokh Conspiracy

Crime to Use Coffee Shop Wi-Fi Without Entering the Coffee Shop?:
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 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, 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 has a statutory 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 Sandstrom v. Montana, 442 U.S. 510 (1979). A presumption that a material element of a criminal statute has been satisfied violates the Due Process clause, which requires the government to provide 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? I've written before about how unauthorized access statutes threaten to punish an incredible amount of conduct online, and this seems like the latest evidence in support of the point.

  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 explaining them in the comment thread.
Anon1ms (mail):
$400 and 40 hours community service doesn't sound "very light" to me. Certinaly not proportional to the harm done (if, indeed, any harm was done).
5.23.2007 2:46pm
scote (mail):
" It is a rebuttable presumption in a prosecution for a violation of section 5 that the person did not have authorization from the owner" excepting "(a) Written or oral permission," etc.

This statute is so broad that one could easily imagine a scenario where all of the coffee shop's customers could also be prosecuted unless they each specifically received oral or written authorization to use the Free WiFi.
5.23.2007 2:50pm
David Welker (mail) (www):
I agree with Anon1ms. The sentence is very harsh compared to the "wrong" that was supposedly committed. This is what happens when police officers are bored and don't have anything to do. Officer Andrew Milanowski should be ashamed of himself for being a useless nuisance.
5.23.2007 2:55pm
MikeC&F (mail):
$400 and 40 hours community service doesn't sound "very light" to me.

I take it you don't do any work in the criminal system. Innocent or not, if you can get out of the "justice" system by paying $400 and doing some community service, you got off light, indeed.

Of course, Orin's post implies other problems in the system. Namely, that it's too costly to retain a qualified lawyer. To hire someone with Orin's expertise and skill would cost several hundred dollars an hour. So do you pay the fine and cop to something you didn't do; or do you take out a second mortgage to "vindicate" yourself in court?

Our justice system encourages innocent people to plead guilty by making it too expensive to fight charges. And, of course, there's always a chance the courts would have rejected Orin's arguments. A conviction at trial would have led to a substantially greater fine, chance of jail time, and would have made it unlikely that the conviction would have ever been expunged.

Orin's post, though this most likely was not his intent, simply illustrates everything that is wrong with the justice system.
5.23.2007 3:03pm
WHOI Jacket:
I'm glad that there are no unsolved murders, robberies, or missing persons cases in the city so that they can focus on the monumental task of BANDWIDTH PIRATE control.
5.23.2007 3:04pm
Martin Grant (mail):
>I'm glad that there are no unsolved murders, robberies, or missing persons cases in the city so that they can focus on the monumental task of BANDWIDTH PIRATE control.

Well it may not be a robbery, but it is a theft. Should they have told the coffee shop their not important enough and they should go pound sand?
5.23.2007 3:11pm
MikeC&F (mail):
WHOI Jacket: Exactly!

What's most bizarre is that no one (including the cop!) knew that what the defendant was doing was illegal. (In fairness, the cop had a hunch something was wrong. But that he did not in fact know for sure indicates the "seriousness" of the crime.)

So instead of solving real crimes, police and prosecutors are devoting their time to stuff like this.

Someone tell me why we need more police on the streets?
5.23.2007 3:12pm
William Spieler (mail) (www):
I'd argue that a wireless access point broadcasting a SSID is asking the public to use the service.
5.23.2007 3:13pm
The Ghost of Xmas Past (mail):
I wonder how many other "fudgies" like myself have unknowingly committed a crime!

Orin, feel like any Pro Bono work, I'm heading up this weekend!!
5.23.2007 3:14pm
MikeC&F (mail):
Should they have told the coffee shop their not important enough and they should go pound sand?

Good point. According to the story, the police chief arrested the defendant after receiving a complaint from the coffee shop. Oh, wait, that's not what happened at all.... Did you even read the story?

According to the story (which could be full of lies, as many media stories are; but for purposes of this discussion we'll accept the story as true), the coffee shop owner didn't even know she was a "victim" of a crime.

Also, what is the marginal cost of having a freeloader on a public wi-fi? It's pretty low. Prosecuting this guy would be like going after someone who took a nickel from the "Give a Penny, Take a Penny" jars at gas stations. "But you took a nickel, which is not a penny!"

I would much rather see scarce law enforcement resources devoted to less trivial crimes.
5.23.2007 3:17pm
VFBVFB (mail):
I’ve been getting free internet access in my building in Manhattan for over a year from some kindhearted anonymous resident. I know that the person consents, because (s)he named the connection, “free public wifi.” But every once in a while, when that connection is down, I use one of the half dozen other free connections in my building.

My theory is that it is so easy to restrict use of a wireless network, that the fact that the person didn’t bother proves that they consented to others using their connection.

—- This is what happens when police officers are bored and don't have anything to do. —-

Check out the story from the Post linked to below, for a much worse story of what happens when police officers are bored, or worse, malicious.
COPS INFLICTED HERNIA HELL: SUIT
5.23.2007 3:20pm
arbitraryaardvark (mail) (www):
Attorney Discipline Board - State of Michigan
www.adbmich.org
http://www.agcmi.com/pages/RequestInvestigation.html
Kent County Assistant Prosecutor Lynn Hopkins
Village President
Leonard R. "Skip" Meyer II
spartapresident@charter.net
156 E. Division
Sparta, MI 49345
I'd submitted this story to slashdot earlier today,no luck.
5.23.2007 3:33pm
Dave N (mail):
I agree with almost every post here. This seems like an incredibly stupid use of police and prosecutorial resources, as well as of a court's time.

OK makes excellent points--as do several other posters, particularly William Spieler and MikeC&F. If a router is "open," then it seems the world is being invited to use it.
5.23.2007 3:34pm
lurker:
There is a wonderful yiddish folk tale (the title escapes me) about a mean-spirited baker who accuses an impoversished child of stealing smells. It should be required reading in the police academy.
5.23.2007 3:34pm
Charles Thomas (mail) (www):
Wouldn't a sign or something similar that said "Free WiFi" authorization?

By the way, I have a completely open network. You can get it from my parking lot. Come on over!
5.23.2007 3:44pm
RPS (mail):

Also, what is the marginal cost of having a freeloader on a public wi-fi? It's pretty low. Prosecuting this guy would be like going after someone who took a nickel from the "Give a Penny, Take a Penny" jars at gas stations. "But you took a nickel, which is not a penny!"


If I may quibble, one freeloader may not change much but considering everyone is using wireless access, which means speeds won't be that great anyway, as the number of freeloaders increase the marginal cost has the potential to increase fairly quickly (obviously depending on what people are doing). I'm not agreeing with the result, for the many reasons already noted, but assuming what he did was a crime, it was not by definition a victimless crime.
5.23.2007 3:45pm
neurodoc:
A conviction at trial would have led to a substantially greater fine, chance of jail time, and would have made it unlikely that the conviction would have ever been expunged.
It mattered not at all whether the Union Street Cafe saw itself as a crime victim and wanted the case prosecuted? What is the maximum penalty that could have been imposed upon him for violation of this statute? Ought we assume that the "perp" bargained with the prosecutor and knew what he would get before he entered a guilty plea?
5.23.2007 3:48pm
Fub:
In addition to Orin's points, and related to his final point that the shop apparently made access available to anyone, it's arguable that the letter of exception (a) and/or (b) was met.
(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.
If the initial screen presented by the network after the protocol handshake says something like "Welcome to the coffehouse access point. Enjoy your surfing", then written permission to use the system has been granted.

If the initial screen doesn't say something like "enter username and password", then the exception of section (b) applies.

Since light duty WEP encryption is built into most wireless routers, if the business owner didn't enable it, then the inference that they intended to make general public access available is more than reasonable.

The boneheads that filed the case should be Nifonged.
5.23.2007 3:59pm
David Welker (mail) (www):
RPS,

You are wrong for the following reasons:

(1) You can easily limit access to WiFi to paying customers if you want to. There is one Starbucks that I know of that gives you a little card that gives you 15-minutes of WiFi if you buy a drink. Also, other Starbucks and Borders Bookstores limit WiFi use to those who subscribe through T-Mobile.

(2) In general, one can easily make WiFi signals public or not public. If they are made non-public, one can take simple measures to ensure that only you or your customers have access.

The coffee shop here is not a victim.
5.23.2007 4:04pm
Seamus (mail):
I guess the next step is to make it illegal to eavesdrop on your neighbor's satellite radio reception.
5.23.2007 4:08pm
Kazinski:
According to the statute no crime was commited, he shouldn't have caved so easily. And he should have ginned up the public ridicule regiman when he was charged, not after the case was disposed of.

This however seems even worse to me, are the authorities here trying to protect for pay networks?

New York's Westchester County is trying a different tack. Their local government said it's up to WiFi subscribers to protect themselves against piggybackers. Businesses were told to secure their networks or pay a fine.
5.23.2007 4:09pm
Robert Lutton:
Are there any other crimes where the police just come and take care of things for you without you having to do something? They certainly don't if someone parks illegally on your property or trespasses or just about any of the nuisance crimes...You have to complain and moan and groan and they still mostly could care less. I still remember going to the police station after my parked car was a victim of hit and run. I canvassed the neighborhood until I found a witness. When I went to precinct they seemed genuinely confused as to why I wanted them to get involved. Maybe we should applaud this brave new world of policing :-)
5.23.2007 4:14pm
MikeC&F (mail):
one freeloader may not change much but considering everyone is using wireless access, which means speeds won't be that great anyway, as the number of freeloaders increase the marginal cost has the potential to increase fairly quickly

We could take this into law-school-hypo-la-la land: What if a bus full of people jumped onto the network?

But, as applied to the actual case we are discussing, there was not a problem. One dude jumped onto the network for a limited time. Instead of running the guy through the justice system, it would have been easier (and cheaper for taxpayers) to tell the guy: "Next time, buy a bagel." The coffee shop could have been instructed to a) lock up its network or b) post a sign saying you must buy coffee before jumping onto the network. Easy enough.

We rightfully expect police officers (especially the chief of police!) to exercise discretion. Why arrest someone for a crime when the "victim" (what did she lose, 1% of her bandwidth?) didn't even know she was a victim? There were much better ways to handle this case.
5.23.2007 4:16pm
MikeC&F (mail):
According to the statute no crime was commited, he shouldn't have caved so easily.

Just curious... Would you have paid his legal fees? I consider it indecent to tell other people how to spend their money.

In any event, I would not have caved - but I know a thing or two about the law. And it would have been a good blog post. But if I would have had to pay $5,000 or more to fight the case, I would have caved just as easily.

I've learned that in our criminal justice system, even if you win, you lose.
5.23.2007 4:20pm
AEW:
I agree that the prosecution was uncalled for, but I think the marginal cost arguments are off the mark. If you sneak into a movie theater, the marginal cost may be negligible if there are plenty of seats and you don't make a mess. Exclusion is not just a way of avoiding costs; it's necessary for the business. Many of the coffee shop's paying customers likely just stopped by to check their email, but unlike Peterson, they had the good sense to realize that they should buy something.
5.23.2007 4:39pm
JosephSlater (mail):
I agree this seems like a terrible idea for a prosecution for all the reasons others have stated. As to whether $400 and 40 hours of community service is "light" or not, does the statute specifiy the potential range of penalties? Sure, it's "light" compated to many types of criminal penalties, but unless you're pretty well-off, $400 isn't painless, dnd 40 hours of time isn't trivial either.
5.23.2007 4:40pm
Prufrock765 (mail):
If the inital post accurately states the scenario, the defendant got what is called a pre-trial diversion--a private agreement between the prosecutor and the defendant, not a "guilty plea", per se. The $400 may represent the diversion program fees. The 40 hrs community service is something the prosecutor added to justify the diversion agreement and maybe to make a bit of an example of this guy. Still, it does seem harsh, all in all, assuming the guy has no criminal history.
5.23.2007 4:52pm
William Spieler (mail) (www):
I don't think it's enough to simply be operating a non WEP/WPA-protected WAP in order to qualify for (b)'s exception. Not having WEP/WPA is saying the door is open. Broadcasting the SSID is saying please come in.
5.23.2007 5:01pm
Fub:
JosephSlater wrote at 5.23.2007 3:40pm:

... does the statute specifiy the potential range of penalties?
According to TFA Orin linked above:

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 did some research and found Michigan's "Fraudulent access to computers, computer systems, and computer networks" law, a felony punishable by five years in prison and a $10,000 fine.
5.23.2007 5:02pm
DG:
The problem is not the statute. Its that the community in question clearly has too many police officers without enough to do. I suggest layoffs.
5.23.2007 5:06pm
Bill Poser (mail) (www):
Isn't there a mens rea problem with this case? If the defendant has no idea that what he is doing is a crime and even the police chief doesn't know, how can the defendant have criminal intent?
5.23.2007 5:13pm
Justin (mail):
Bill, you don't need "criminal" intent, you just need "specific" intent. It's pretty clear that he intended to use the system, and notwithstanding the presumption problem, or the (c) exception, factually knew that his access was "without authorization or by exceeding valid authorization." That's all the mens rea he needs.

In other words, if he accidentally accessed the network, or thought he was accessing his own network (or some network that gave him the required authorization) but in reality was accessing the coffee shop, THEN he'd have a mens rea defense (other than the one implied under Sandstrom).
5.23.2007 5:28pm
MikeC&F (mail):
If the defendant has no idea that what he is doing is a crime and even the police chief doesn't know, how can the defendant have criminal intent?

As a general rule, it's enough that you intended to do the act that was a violation of the law; whether you knew of or intended to violate the law was irrelevant. Here, the defendant intended to log onto the network. That's all it takes to prove intent under the statute.
5.23.2007 5:31pm
Prufrock765 (mail):
"Mens Rea" applies to the mental involvment in the act you are committing, not the law in the jurisdiction.
He had the intent to use (or, more accurately, he knowingly used--rarely do criminal statutes require a showing of specific intent) wireless internet to check his e-mail. "Intent to break the law" is not part of the analysis.
5.23.2007 5:32pm
Fub:
William Spieler 5.23.2007 4:01pm:
I don't think it's enough to simply be operating a non WEP/WPA-protected WAP in order to qualify for (b)'s exception. Not having WEP/WPA is saying the door is open. Broadcasting the SSID is saying please come in.
I agree. I implicitly assumed they must have been broadcasting SSID because the reports didn't indicate that he was sniffing traffic in order to get access.
5.23.2007 5:51pm
Bryan DB:
Orin,
The linked articles don't mention an attorney, so I don't know if the "criminal" hired one. But I can tell you why *I* wouldn't raise those potentially winning arguments in my prosecution: it would cost more to pay the attorney to raise them than I'd be paying in the fine, and the violation is going to be expunged anyway. What good is it, as the defendant in a case that will be expunged, to avoid a $400 fine by paying $2000 (e.g.) to raise a winning legal argument? None.
5.23.2007 5:56pm
arbitraryaardvark (mail) (www):
After watching the CNN coverage, I will temper my earlier remarks. I thought the sign said "free wifi"; turns out it says "free wifi customers only". Unless that was added later?
Slashdot has more.
5.23.2007 6:31pm
Just Dropping By (mail):
If you sneak into a movie theater, the marginal cost may be negligible if there are plenty of seats and you don't make a mess. Exclusion is not just a way of avoiding costs; it's necessary for the business.

Except, since the coffee shop was transmitting some distance beyond its walls, this case is more analogous to someone with a pair of binoculars sitting on a hill overlooking a drive-in theater. Should that person be prosecuted for stealing a viewing of the movie, notwithstanding that they weren't on the theater's property and the theater owner failed to take steps to shield the screen?
5.23.2007 6:41pm
David M. Nieporent (www):
Bill, to echo what Justin, MikeC&F, and Prufrock said, that's where the phrase "Ignorance of the law is no excuse" comes from. (Although, in fact, it sometimes is an excuse, depending on how a law defines a particular crime.) Factual ignorance -- "I thought it was sugar" -- is always a defense to an intent crime, but legal ignorance -- "I didn't know possession of cocaine was illegal" -- is not.
5.23.2007 7:08pm
whit:
again, it's "blame the police" in this forum.

fwiw, i think the sentence is WAY too harsh for a crime that the guy didn't even know he was committing. i realize that one does not have to know the act IS illegal, but imo that does (and should) make a difference. admittedly, i would not have believed i was breaking the law by doing the same thing he did.

the statute is also (imo) ridiculously broad.

once again, though, cops are blamed for bad law. cops don't pass stupid laws - legislators do.

it also seems probable that the "victim" in this case did not even know what the defendant did was a crime. did THEY seek prosecution? i have a big problem with prosecutors who always want to seem to prosecute crimes when the victim doesn't desire prosecution. i can understand it in certain crimes (like where the victim is dead ... :0 ) but it's not like the VICTIM came forward and desired prosecution.

why not just give the guy a frigging WARNING and move on with it.

the charging decision ultimately lies with the prosecutor and i cannot understand what "interest of justice" he thought he was pursuing for prosecuting this crime.

again, my biggest problem is with the law itself. the presumption is ridiculous.
5.23.2007 7:08pm
RainerK:
Whit,

What does it take for you to realise that we all have to take some responsibility for what the lawmakers do in our name as well as what the justice system does in our, the citizens' name?

Officials of any kind are at a minimum open to criticism for the actions they take. And the cops in this case certainly deserve the criticism.
5.23.2007 7:47pm
Brent Peterson:
Whit,

I agree with most everything you wrote, but do you really believe that the arresting office deserves no scrutiny in this matter? Doesn't the officer have the discretion to inform the violator of the law and then merely issue a warning? If the officer does have discretion, it seems like a warning would be warranted here, especially in light of the fact that the law is somewhat vague and that most citizens--including, apparently, the officer himself--were unaware of the law.
5.23.2007 8:06pm
k parker (mail):
David Welker, your points seem unobjectionable to me, but I can't see how they respond to RPS in any way, who wrote solely about the incremental bandwidth impact.
5.23.2007 8:09pm
Fub:
whit wrote at 5.23.2007 6:08pm:
again, it's "blame the police" in this forum.
I agree with much of what you say here, except the assessment that it's "blame the police".

From the article it is clear that the police officer went out of his way to research the law to find a crime he believed the prosecutor could charge. That says he bears some responsibility for the particular charges being brought. I don't think that's "blaming the police." I think it's a statement of fact.
the charging decision ultimately lies with the prosecutor and i cannot understand what "interest of justice" he thought he was pursuing for prosecuting this crime.
Absolutely. The prosecutor is a bonehead, or has a surplus of political ambitions, or a deficit of ethics, or all three. The prosecutor could have told the police officer to find something else to worry about, like catching real criminals, instead of seeing how far he could press a flawed statute against a clueless defendant.

But the prosecutor had an obvious temptation. He could get a major felony conviction to brag about, just by charging a clueless defendant under a flawed statute, then offering an apparently sweet plea bargain.

So, it's win-win-win from the prosecutor's point of view.

Prosecutor gets political bragging rights for cracking down on high tech crime. Police get praise for shoehorning the facts to fit the the statute if nobody looks too close. Citizen Shmoe doesn't even know he's been shafted because he doesn't know the state can hold the conviction against him later even if it has been expunged.

The only problem is that a prosecutor's ethical duty is not to get convictions at expense of justice. Prosecutor's ethical duty is to pursue justice, even at the expense of a conviction. This prosecutor didn't. This one went for an easy conviction under a statute that he knew or should have known was seriously flawed, supported by facts he knew or should have know were flimsy at best.

That's why I said the prosecutor should be Nifonged.
again, my biggest problem is with the law itself. the presumption is ridiculous.
I agree the statute is a big problem. But I think the biggest problem is the prosecutor who should have known the state of the law, should have asked the "victim" if they really wanted a prosecution (although prosecutor has no legal duty to do that, but it's the decent thing to do) and who takes legal advice from a cop who thinks he's a lawyer.
5.23.2007 8:26pm
whit:
i TOTALLY agree that the arresting officer (i think he swore out a warrant, not sure if any custodial arrest was made. not clear by the text)could have given a warning. he couldn't Initially give a warning, cause he didn't even know it was a crime. he could have recontacted the defendant and told him "don't do it again", and contacted the "victim" and told him of the results of his investigation - and be done with it.

my point is that over and over again, the tactic is blame the cops for enforcing stupid laws.

stupid laws are COMPLETELY the fault of the legislators that pass them.

i don't recall anybody in this thread giving the legislators the kind of criticism they gave the cop.

the law is stupid, especially with the presumpion in it. the prosecutor is the one who is supposed to dispassionately decide whether or not to prosecute.

i find the primary fault lies with the legislators, the 2ndary fault with the prosecutor (since he was the one who decided to charge - which is the only way this stupid case would have gotten to court), and the tertiary fault lies with the cop, who was enforcing (dumb) law.

i am most disturbed by the proscutor because it seems pretty apparent that the "victim" in this case did not pursue the pressing of charges, and that would give him a good reason not to pursue them himself.

i'd love to read the PC cert in this case.

my jurisdiction recently passed one of the stupidest and liberty encroaching anti-smoking laws i have ever seen. would i ever enforce it WITHOUT a complaint from a "victim?" no.

it just never ceases to amaze me how many stupid laws legislators pass.
5.23.2007 8:28pm
RainerK:
Good points Whit.

Perhaps people have really given up on the legislators. They hold the police and the prosecutors to a higher standard of common sense than "If it's the law it must be enforced."
5.23.2007 10:38pm
Bill Poser (mail) (www):
Various folks,

I understand how one can lack criminal intent but have mens rea and the adage that "ignorance of the law is no excuse". What I was thinking of, but did not make clear, is that the defendant had no intention of damaging the shop's computers, obtaining access to any of the shop's information, etc., the sorts of things that statutes barring unauthorized access are typically about. What I did not realize was that the Michigan statute includes mere use of a network even if no special measures were taken to obtain access.

Bill
5.23.2007 11:21pm
Bill Poser (mail) (www):
I'm surprised that no one has raised the issue here of why it was proper (as a matter of policy even if not of law) for the police officer to burden both the defendant and the courts with such a case rather than attempting to prevent crime. Here we've got a guy who by all accounts had no intention of doing anything wrong and a cop who himself didn't know offhand whether or not it was a crime. Wouldn't the more appropriate behavior have been for the cop to warn him that what he was doing might be illegal and later to confirm this after looking into the question? Ignorance of the law may not be an excuse, but when even the chief of police doesn't know the law (and it isn't something obscure and specialized), charging someone without any warning is grossly unfair and is likely to antagonize him and others rather than bring about compliance. It is exactly this kind of thing that makes law-abiding citizens treat the police as enemies.
5.23.2007 11:28pm
Villager:
Sparta Michigan is a small-town village with a small police force. In a town like that, the police probably have a lot of free time on their hands.
5.24.2007 12:30am
Mark Buehner (mail):
Absurd law, more absurd prosecution. No-one using wi-fi in that coffee shop had written or verbal authorization. Selective prosecution. This is exactly the case of watching a drive in movie or a baseball game from a nearby rooftop, except worse- customers specifically pay for those events while wi-fi is assumed to be 'free' in this setting. If the network had been piggybanked outside a police precinct this might be considered entrapment.
5.24.2007 12:42am
whit:
bill, why don't you try reading the account. the cop DIDN'T know if it was illegal, so he got the guy's name, etc. then RESEARCHED IT (and most likely consulted either his dept.'s attorney or the DA) and THEN swore out the warrant. that's being prudent. that's what LEO's are supposed to do - clearly it wasn't a case requiring he take immediate action, so he didn't.

as i have said, i think it's a stupid law (blame the legislator) and a mistake to charge him (blame the prosecutor) but it's hardly bad policy for the police to "burden" the court system by presenting violations of the law to the prosecutor's office. if i was the cop, i would have given a warning, if that, but again - the problem is the stupid law.

maybe the legislator will REALIZE it's a stupid law and repeal/change it. fat chance, but that would be nice.
5.24.2007 12:44am
Randy R. (mail):
I think it's a bad law, and this was badly handled. And I think the man did nothing wrong legally, or what he did should not be illegal.

Having said that, the realm of ethics may suggest something else. Yes, the coffee shop is offering this free, and yes, it even spills out into a parking lot.
Nonetheless, the reason the cafe offers free wifi is to attract customers. If everyone did what this man did, ie, use the free service without buying any coffee or other sale items, then the cafe will eventually go out of business, and everyone loses the free wifi. So, the cafe, and the real coffee buyers are subsidizing the man who refuses to buy cafe. (Some might even call this socialism, whereby the people with money are subsidizing the man who refuses to pony up).

If I were a cafe owner, I would prefer a system whereby I can limit the wifi access to just inside my store, and not into the parking lot. But that day hasn't come

Therefore, I suggest that the ethical thing is for the man to buy a coffee from time to time -- it doesn't even have to be every day -- but often enough as a way to help pay for the convenience that everyone benefits from.

Perhaps instead of paying a fine, the man could have agreed to buy a coffee from the shop every day for one year. At least he would beneti materially (he gets coffee AND free wifi) and the store gets the money.
5.24.2007 1:34am
Guest12345:
How ridiculous it is to hear the argument that "if it lets me in, they must want me there." Or "if it broadcasts the ssid it's inviting me in." Both stupid. Imagine how many ways your life could be horrible if it was your responsibility to guarantee that anything you don't desire is impossible (or difficult.)
5.24.2007 1:48am
neurodoc:
whit, when they enacted this law, the legislators may not have foreseen or desired outcomes like the one in the instant case. Indeed, I very much doubt they contemplated anything like this, making it "a felony punishable by five years in prison and a $10,000 fine." Call the law and the legislators "stupid," if you will, but is it really so outrageous that they would craft "defective" legislation to deal with the relatively new and evolving subject of cyber crime? I think not.

On the other hand, the LEO could see exactly what was involved in the instant case and how trivial an offense he had stumbled upon, one he was not even sure was an offense until he had done some research on the subject. Why not be critical of the LEO for his role in this unfortunate folly, since he was exercising discretion in charging the fellow? Granted, the prosecutor was probably the most blameworthy of anyone.
5.24.2007 2:42am
Fub:
Randy R. wrote at 5.24.2007 12:34am:
If I were a cafe owner, I would prefer a system whereby I can limit the wifi access to just inside my store, and not into the parking lot. But that day hasn't come
I respectfully disagree, on grounds that I've seen it done -- not to perfection that would stop even a mildly determined scriptkiddie with a scintilla of a penumbra of an emanation of clue, but well enough to at least make a prosecution something besides a bad joke.

As William Spieler writing at 5.23.2007 4:01pm pointed out: just don't broadcast SSID. That's usually a trivial router setting. Once done, anybody who wants to use your network must find out the SSID from a source besides your router. It's trivial for anyone to sniff traffic to your router and obtain the SSID, but they won't get it from your router's broadcast. It would rebut any future argument that your router invited them in.

It's the rough analog of leaving your front door closed but unlocked. Anybody who really wants in has to at least move the latch and open the door (and therefore "break" in the common law sense of the burglary element) in order to enter.

There are other more effective and approximately equally simple means to discourage or prevent unwanted access, but that is a totally trivial first step.
Therefore, I suggest that the ethical thing is for the man to buy a coffee from time to time -- it doesn't even have to be every day -- but often enough as a way to help pay for the convenience that everyone benefits from.
Yes, that would be an ethical thing to do. But charging a crime for being a boor is just foolish, or worse, it engenders disrespect for law and law enforcement.
Perhaps instead of paying a fine, the man could have agreed to buy a coffee from the shop every day for one year. At least he would beneti materially (he gets coffee AND free wifi) and the store gets the money.
How about this, as other comments here have suggested: the cop just says "be a mensch and buy some coffee sometime, it's good and you'll like it", and lets it go at that?

That way everybody would win. The inadvertant felon gets a valuable lesson in kindergarten ethics. The coffeeshop sells more coffee. The cop makes a friend and more time to look for real crime. The DA doesn't look like a jackass. The legislators don't look like clueless fools. The fourth estate doesn't get to hopelessly garble yet another story. And the learned denizens of VC don't waste their valuable time blabbering about it.

Oh wait!
5.24.2007 5:16am
Larry2:
Here in the People's Republic of Michigan there are lots and lots of cops. I sometimes think local governments look upon their police forces in the same way that FDR looked upon the WPA in the 1930s - useful mainly as a jobs program. When there are so many cops, they tend to fill their time by doing things like this.
5.24.2007 10:37am
A law unto himself:
On local TV news (I live 10 minutes from Sparta), the police observed this guy stopped in front of the store on multiple occasions, sitting in his car. This prompted the inquiry.

I think "Just Dropping By" has it about right from a technical standpoint. If you don't want others on your WiFi, don't broadcast (broadcasting is a key issue - ref: Communications Act of 1934) the SSID. Over the air broadcasts covered by the act may be a Federal pre-emption of this Michigan law.

Another note - the law was written in the pre-wireless days of networking. When written, a physical connection was necessary to access computer systems and/or networks. The wireless aspect of this case makes me wonder if the Communications Act applies...
5.24.2007 11:35am
Deoxy (mail):
Guest12345,

How ridiculous it is to hear the argument that "if it lets me in, they must want me there."

Try going to Wal-mart. See if they let you in. Note that the door is open, and there is a sign saying "Open".

Now try unsecured wifi. Your computer ASKS it is you may use the access - it says, "YES." That's actually MORE explicit permission than you have when you go into Wal-Mart.
5.24.2007 3:24pm
Public_Defender (mail):
Professor Kerr questions why some of his arguments weren't made. He's right that the facts in the article are sketchy, but let me suggest this. Kerr's arguments are not slam dunks. The guy still could have lost at trial, which would have left him with a felony record and the potential for years in prison.

Sure, prison time wouldn't be reasonable, but not all trial judges are reasonable. And in my experience, small town judges are more likely to impose prison than judges in bigger cities.

I've also had clients take pleas over my advice that they had an extremely strong legal defense because they didn't want the risk, and they just wanted to get the case behind them.

That makes sense for some defendants. I once got a client's conviction permanently vacated on appeal because the prosecutor didn't allege or prove an element of the offense (oops!). The problem was, the guy had already completed his prison term by the time I "won."

Bottom line: If the plea was to a misdemeanor, it appears to make sense. If the plea was to a felony, it makes less sense, but there are too many variables we don't know.
5.24.2007 6:06pm
Fub:
Public Defender wrote at 5.24.2007 5:06pm:
Bottom line: If the plea was to a misdemeanor, it appears to make sense. If the plea was to a felony, it makes less sense, but there are too many variables we don't know.
As indicated by Orin's link above, the plea was to a felony punishable by five years in prison and a $10,000 fine.
5.24.2007 9:27pm
john garcia (mail):
it looks like the crime rate is low in sparta, maybe i should move there!!
5.24.2007 10:01pm
Bill Poser (mail) (www):
Whit,

Before accusing others of not reading the account, please try reading yourself. My post correctly recites the very facts that you claim I missed. The cop wasn't sure what the law was and had to check. As I said, the appropriate thing to do would have been to raise the issue with the defendant and then, after checking, let him know the outcome.

Bill
5.25.2007 4:14am
Public_Defender (mail):
As indicated by Orin's link above, the plea was to a felony punishable by five years in prison and a $10,000 fine.

We're both wrong. He charge bargained to a misdemeanor. According to the article that Professor Kerr's post links to:


As a first-time offender without a prior record, the Kent County prosecutor's office decided not to charge Peterson with a felony. Instead, he'll be enrolled in the county's diversion program.

He'll pay a $400 fine and do 40 hours of community service, but it will not go on his record.


This means he got a misdemeanor. Also, in most diversion programs, your record is wiped clean after successful completion.

The defense didn't have a slam dunk argument. The offense was minor. The defendant will likely have a clean record at the end of this. The deal seems reasonable to me.

The question is, what exactly did he plead guilty to? They probably had to look to something else, like misdemeanor theft or some kind of disorderly conduct charge.

Part of the problem with the wireless statute is that it doesn't have gradations of punishment for gradations of wrongful conduct.

A felony wrap may be fair for a defendant who hacks into private parts of the host's server or the hard drives of fellow wi-fi users. A felony may also be fair for a defendant who uses public wi-fi to hide illegal activity. But non-disruptive, otherwise legal use should not be a felony.
5.25.2007 7:08am
Fub:
Public_Defender wrote:
We're both wrong. He charge bargained to a misdemeanor. ...
You're right. I answered the wrong question, original charge was felony, not what he pleaded to.
5.25.2007 8:59pm
Bently Harris (mail) (www):
In my opinion - Every body is wrong in this article.
>The coffee shop should have at least taken minimal security measures.
>>The community's money should be used for real issues.
>>>People who steal are criminals.
>>>>Laws are written to be interpreted by any one in a self serving manner if they can get away with it.

So...
1) Lock your doors/networks... It helps keep honest people honest, especially if they know better.
2) Spend community money on hmmmm... Free public Wifi? It's cheep and easy if you keep the evil greedies out. It's being done all over the world.
3) Don't steal stuff and you won't be a criminal.
4) Help pay an attorney's Lexus payment and he/she will interpret the law in your best interest.

Think about this.
If you intentionally "click connect" to someone else's Wifi network that you don't have permission to access... that's stealing. Also you may click on a network designed to steal YOUR stuff... Or better yet some guy/girl might come out and beat the crap out of you for getting on his/her network. (That would be very cool in some cases... for repeat offenders of course.)

I don't condone violence ;)>
If you ask nicely you may use my wifi network. I'll gladly add your mac address.
5.26.2007 1:08am