Is it OK to Share my WiFi? (Comcast)

Image via CrunchBase

So, with the growth of FON and Whisher, not to men­tion more infor­mal shar­ing between neigh­bors, the ques­tion arises: is this legally accept­able from the per­spec­tive of the broad­band sub­scriber? (Note: please do not rely on this for legal advice. I am a law stu­dent, not a lawyer, and cer­tainly not your lawyer.)

In a broad sense, at least tra­di­tion­ally, there is no prob­lem, as in gen­eral it’s per­fectly accept­able to share one’s own prop­erty (and a sub­scrip­tion is a sort of prop­erty) with another. I could, after all, pass on my mag­a­zine to another per­son after I read it. I could even sell that mag­a­zine. (Note that con­tract law could, and does, mod­ify this in var­i­ous ways based on a pri­vate agree­ment between two or more parties.)

Of course, in mod­ern times, we’ve decided to make the sit­u­a­tion more com­plex by grant­ing greater pro­tec­tions to the “cre­ator” of the work (or, actu­ally, the entity that owns the copy­right, which is usu­ally not the orig­i­nal cre­ator). Thus, cable com­pa­nies are pro­tected by “theft of ser­vice” laws which can carry crim­i­nal penal­ties, and music com­pa­nies can bring civil actions for dam­ages if you share the music you pur­chased with others.

In a sim­i­lar way, the broad­band provider (I will use Comcast as my exam­ple here) has a sig­nif­i­cant legal inter­est in what hap­pens to their ser­vice. While it is clear that if your neigh­bor tapped into your cable tele­vi­sion they might be crim­i­nally liable, it does not appear that the same applies to a shared WiFi sig­nal. (So far, “theft of ser­vice” laws do not appear to have been extended in this man­ner, and remain lim­ited to cable television.)

Thus we end up at con­tract law. So let’s look at the “accept­able use poli­cies” and “sub­scriber agree­ments” that you agree to when you sign up for broad­band ser­vice. Unlike civil or crim­i­nal penal­ties, it is unlikely that these con­tracts carry any mon­e­tary penal­ties with them if you vio­late them (con­tract law is not about pun­ish­ment). Rather, the most likely result is ter­mi­na­tion of ser­vice, which may or may not come with addi­tional pay­ments due (not the same as pun­ish­ment, even if it seems like it!).

Whisher, a WiFi shar­ing ser­vice I looked at pre­vi­ously, says this:

WiFi shar­ing is tol­er­ated by most ISPs world­wide as long as you don’t resell your Internet access, which is some­thing we are not doing within the Whisher community.

We believe that shar­ing your WiFi with other mem­bers of the Whisher com­mu­nity is the same as shar­ing it with your fam­ily or a vis­it­ing friend. Since at Whisher every­one has a per­sonal pro­file, which you can use to get to know peo­ple vis­it­ing your WiFi, shar­ing becomes a social activ­ity, rather than anony­mous access to the Internet by jump­ing on an open connection.

So is it OK under Comcast’s con­tract? Let’s look at the Comcast High-Speed Internet Service Subscriber Agreement and see if we can parse out some­thing helpful:

Prohibited Uses and Activities

Prohibited uses include, but are not lim­ited to, using the Service, Customer Equipment, or the Comcast Equipment to:

ix. resell the Service or oth­er­wise make avail­able to any­one out­side the Premises the abil­ity to use the Service (i.e. wi-fi, or other meth­ods of net­work­ing), in whole or in part, directly or indi­rectly, or on a bun­dled or unbun­dled basis. The Service is for per­sonal and non-commercial use only and you agree not to use the Service for oper­a­tion as an Internet ser­vice provider or for any busi­ness enter­prise or pur­pose, or as an end-point on a non-Comcast local area net­work or wide area network.

Essentially, this clause for­bids “mak[ing] avail­able” the “Service” (that is, your Internet access) to any­one out­side the “Premises.” Note though, that, as Whisher sug­gested, Comcast appears much more con­cerned with com­mer­cial shar­ing or reselling, and more tol­er­ant of per­sonal, non-commercial use. Since most peo­ple do share with guests, shar­ing with neigh­bors may well be OK as well, pro­vided you don’t charge them any­thing for the priv­i­lege, and espe­cially pro­vided you don’t make money on the deal.

In short, I think Comcast would like to sell ser­vice to every­one inde­pen­dently. But this clause allows them to flex a lit­tle, pro­vided you don’t try to make money at their expense. So I think Whisher has the right idea. However, this also pretty clearly gives Comcast the right to change its mind if it doesn’t like your par­tic­u­lar way of shar­ing. (Also note that a court might not back Comcast on this 100%, but that’s both tricky and expen­sive to find out. And I strongly sus­pect all courts would uphold the “no com­mer­cial reselling” provision.)

Security

You are respon­si­ble for any mis­use of the Service, even if the mis­use was com­mit­ted by a friend, fam­ily mem­ber, or guest with access to your Service account.

Just a heads up from Comcast that if you do share, you are respon­si­ble for what your guests do. So if they share copy­righted mate­r­ial, Comcast can shut you down (under their con­tract). (But note: this is only under Comcast’s con­tract, and doesn’t impact your legal rights if some­one else sues you, for exam­ple. That’s more com­pli­cated, and not well settled.)

So, remem­ber, even if they don’t enforce this, or some part isn’t legally OK, that doesn’t mean they can’t enforce the rest or start enforc­ing some­thing later:

The fail­ure of Comcast or its sup­pli­ers to enforce this AUP, for what­ever rea­son, shall not be con­strued as a waiver of any right to do so at any time. You agree that if any por­tion of this Policy is held invalid or unen­force­able, that por­tion will be con­strued con­sis­tent with applic­a­ble law as nearly as pos­si­ble, and the remain­ing por­tions will remain in full force and effect.

In sum­mary: shar­ing with Whisher or FON is likely tol­er­ated by an ISP with an agree­ment like Comcast’s, but they have full rights to cut you off if they don’t like it, or don’t like your par­tic­u­lar shar­ing, or don’t like what oth­ers you share with are doing… so keep that in mind.

See also:

• Is it OK to Share My WiFi? (Clearwire)
• Is it ok to share wifi? (From the Irish blog caerta.ie.)
• Two Approaches to Community WiFi Sharing