Imagine if someone hacked your home wireless router. Imagine if they then changed the settings to open up a separate channel on your router – a channel that allowed them to access both the router and the Internet without your knowledge or consent.
Imagine then if they charged people in the neighborhood money to be able to get credentials to access this secret channel they had opened up to the router in your house. Imagine if every time someone used your router, it slowed your Internet connection, and used electricity in your home.
Now imagine that the person doing this was your Internet provider.
In a case filed in San Francisco federal court (.pdf), class action plaintiffs Toyer Grear and Joycelyn Harris have sued Philadelphia based Internet provider Comcast alleging that their rented wireless modem was being used without their knowledge or consent by Comcast to create a wireless broadband network for other Comcast subscribers to access.
According to the complaint these wireless routers came with two channels – one for the subscriber, and the other, turned on at the whim of Comcast, to provide a wireless mobile hotspot for Xfinity subscribers.
The second channel essentially acted as a mini-cell network, using Comcast subscribers’ resources to provide a stream of additional revenue for Comcast. So if you are driving through a San Francisco neighborhood, you have Xfinity hotspot access through the wireless routers of Comcast subscribers.
Problem is, the subscribers neither knew that their routers were being used this way, nor did they consent to it.
For years cable providers have sued those who have “piggybacked” cable signals, using splitters, descramblers and other devices. They have had them criminally prosecuted for violations of the Digital Millennium Copyright Act, the Computer Fraud and Abuse Act, for wire fraud, for copyright infringement, and for theft of services. Even for theft of electricity.
Now the shoe is on the other boot.
The class action plaintiffs are alleging that Comcast’s actions violate many of the same laws, including the federal and California computer crime statute, and the California deceptive trade statute.
The complaint alleges that “Comcast never obtained authorization from its customers to use the customers’ household routers to broadcast additional Wi-Fi hotspots that are available to the public. As a result of this unauthorized use, Comcast is (1) externalizing its costs for this project onto its customers; (2) compromising the speed of the customers’ Internet access; and (3) subjecting its customers to increased security risks.”
But is it legal?
Magic 8 ball says – situation murky – ask again later.
Now if I were to hack into your router, open a second channel (not accessing your files or data, but merely getting Internet) it would probably be a crime. In fact a Michigan man was arrested for sitting outside a coffee shop and getting free WiFi without changing any settings. There have been dozens of cases where people were arrested for theft of services or unauthorized computer access for doing nothing more that accessing free public or unsecured wireless routers.
These include cases like Benjamin Smith III arrested in St. Petersburg, Florida when apartment dwellers observed him “stealing” a wireless signal from his car outside, or that of David M. Kauchak arrested and convicted in Winnebago County Illinois for the same thing.
Sam Peterson of Sparta, Michigan, was arrested for checking his email using a local café’s wireless Internet access from a car parked nearby and in Palmer, Alaska, Brian Tanner was also charged with the crime of “theft of services” for using the WiFi connection of the public library from the parking lot.
So “stealing” free WiFi is a crime. Well, unless you are a cable company, of course. Then it’s a business decision.
In fact, the Cable and other Internet companies wanted the ability to fine people for NOT preventing access to their wireless routers. This was not because they wanted to promote better wireless security. It was because they wanted to be able to charge everyone for accessing the Internet. No more neighbors coming over to borrow a cup of Internet.
It was at the behest of large copyright holders. Like NBC. Or Universal Studios. So that if an IP address of a P2P file sharer of the latest NBC show or Universal movie pointed to a wireless router, Comcast could finger that user to the totally independent copyright holders and the user couldn’t say, “sorry, my wifi router was wide open. Somebody else accessed it and shared that movie…” Nope, you could get fined just for having a wireless router that somebody else could access without your knowledge or consent.
Unless that somebody was, of course, Comcast itself.
So, can Comcast turn your home into a wireless hotspot without your knowledge or consent, cost you money, slow down your Internet, use your electricity, and invite the neighbors over for a virtual party?
For that we have to look at the contract.
The contract, written by Comcast’s lawyers, which your choices were either take it. Or leave it. Yes, that contract.
And you can bet two things about the contract. First, it doesn’t expressly give any notice to the Plaintiffs in this case that Comcast will be opening up their routers for the paying public at the Plaintiff’s expense. Second, it probably says that there’s not much the Plaintiffs can do about it. First, of course, Comcast will allege that the class action lawsuit must be dismissed because, under the contract, the parties must arbitrate ALL disputes between the parties.
They mean all “disputes” defined as “any dispute, claim, or controversy between you and Comcast regarding any aspect of your relationship with Comcast, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision.”
So if Comcast breaks into your house, sets fire to the living room, shoots the family dog, and punches you in the face, you have to arbitrate.
Not only that, but the agreement states that “THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS.”
So thousands of Comcast subscribers could each file an arbitration claim for the value of the electricity “stolen” by Comcast. But they wouldn’t. Comcast knows it.
The agreement also allows Comcast to change “XFINITY Equipment and rates or charges, at any time with or without notice. We also may rearrange, delete, add to, or otherwise change programming or features or offerings contained in the Service(s), including, but not limited to, content, functionality, hours of availability, customer equipment requirements, speed, and upstream and downstream rate limitations.”
So the argument that making your WiFi router available to the public slowed you down to a crawl? As recent Kennedy Center honoree Lily Tomlin’s character Ernestine would say, “we don’t care, we don’t have to. We’re the phone company.”
But here’s the kicker. The agreement provides that “You agree that the Service(s) and the XFINITY Equipment will be used only for personal, residential, non-commercial purposes, unless otherwise specifically authorized by us in writing. You will not use the XFINITY Equipment at any time at an address other than the Premises without our prior written authorization. You agree and represent that you will not resell or permit another to resell the Service(s) in whole or in part.”
So the consumer has a legal obligation to prevent Comcast from doing what it is doing.
Bet the lawyers over at Comcast forgot that part.
The case has just been filed, and Comcast has yet to file an answer. Stay tuned to this channel for more information. If you can’t access it over your own Internet connection, try your neighbor’s.