Wireless Liability: Liability Concerns for Operators of Unsecured Wireless Networks

Abstract

A growing number of plaintiff’s lawyers in digital copyright infringement cases are aggressively pursuing claims against even unlikely defendants. Most notably, in one case a seventy year old grandmother accused of pirating pornography. Furthermore, plaintiff’s lawyers state in settlement letters that “[t]he Internet Service Provider . . . account holder is responsible for securing [their] [wireless] connection and may be legally responsible for any infringement(s) that result from an unsecured wireless network/router,” even if a “spouse, child, roommate, employee, or business associate” committed the infringement. Some of these initial settlement letters even state that the affirmative defense of having an unsecured wireless network “has never been successfully argued, in multiple contexts, including child pornography and civil copyright infringements actions.” Recently negligent operation of a wireless network (WLAN) has also begun to appear as a cause of action in digital copyright infringement cases. One unnamed defendant (Doe 4) even agreed to pay $10,000 as part of a settlement in which he “acknowledge[d] that a failure to secure [his] wireless internet router by password protection may invite infringing uses of copyrighted materials accessible to individuals through such a router.” Doe 4 also agreed to take steps to “secure his . . . router and to deny [the] use of his internet connection to anyone who would engage in infringing conduct.” This paper focuses on the liability of wireless network operators for the wrongful acts committed by others on their unsecured networks. The premise of this paper is that the operator of an unsecured wireless router is not liable for the wrongful acts of third parties committed over his open Internet connection.