Note: this post is from 2007. The terms of service and so on of Comcast have changed, though the general analysis is still reasonable.
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!).
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.)
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.
- 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