Eoin O’Dell has posted a discussion of the question of whether finding and using open wireless broadband connections paid for by somebody else is a criminal offence.

This is a question that comes up every now and then in online discussions.

Back in September 2002, Karlin Lillington of the Irish Times raised the question;

According to a discussion at last night’s Wireless Wednesday in Dublin, “warchalking” — or identifying with (usually) chalked symbols where wireless networks are in operation to allow people to connect in to them — is illegal in Ireland, due to some element of a regulation passed by the then-Dept of Public Enterprise a year ago. Will see if I can find out more.

From what I can make out, quite apart from any Dept. of Public Enterprise regulation, it seems to fall under the new (well, in force since August 2002) definition of theft in the Criminal Justice (Theft and Fraud Offences) Act 2001. According to Section 4(1) of the Act, “a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving it owner of it.”

As property’s definition includes “intangible property” such as bandwidth, and the appropriation of property (S.4(5)) includes “adversely interfering with the proprietary rights of the owner”, I’d say that it could be the basis of a criminal charge against somebody gaining access to an unprotected wireless internet connection. Max penalty is 10 years imprisionment and an unlimited fine.

But let’s not rush our hypotheical email-checker to the gallows just yet. Let us not forget that sub-section 4(2)(a) goes on to say;

(2) For the purposes of this section a person does not appropriate property without the consent of its owner if—

(a) the person believes that he or she has the owner’s consent, or would have the owner’s consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated

Not the easiest case for the prosecution to prove.