Can Wi-Fi owners be held accountable for users' infringements?

Today Communications Alliance, which is the primary telecommunications body in Australia, published an extremely interesting information paper on the issues being generated by the emergence of Public Wi-Fi Networks in Australia (see the report of ComputerWorld here). 

As stated in the press release, the paper "provides an overview of the current state of the Public Wi-Fi industry in Australia and the legal and regulatory obligations and technical requirements to be considered by existing and new operators of Public Wi-Fi networks." In particular, the paper "looks at the commercial models being employed around such networks, the emergence of new protocols that may significantly boost the capability of Wi-Fi Networks, and end-user issues associated with Wi-Fi connectivity."  

"Public Wi-Fi networks have long been available throughout office environments and public areas such as airports and shopping centres for use as either a free or commercial service for mobile workers, travellers and shoppers, and appear likely to play a larger role in the national ‘connectivity matrix’ in years to come" pointed out the Chair of the Public Wi-Fi Networks Group. However, as explained by Communications Alliance CEO, the technical, regulatory and planning guidelines for Public Wi-Fi networks are not as well defined in Australia as they are for mobile networks.

Indeed, it was not long time ago that the High Court of Australia published its judgment in Roadshow Films v iiNet (on which see the report of the IPKat here). 

However, as noted in Communications Alliance’s paper, pressure on users of fixed networks in relation to the behaviour of end users who infringe copyright via online activities "might continue and be extended to mobile and/or Wi-Fi networks in the future."

In particular,

At present if an end user is identified as accessing prohibited content via a Wi-Fi network then the party with the legal responsibility for identifying the offender has not been tested. Similarly the nature of the interaction between Wi-Fi network operators and service providers with law enforcement agencies (LEAs) has not been tested. This is in contrast to standing arrangements that exist between LEAs and both licensed carriers and [Carriage Service Providers] …

While legal/lawful interception can be done, the associated processes are not standardised in the way they are for tracing (phone) numbers in a licensed carrier network.  Practical challenges on a public Wi-Fi network may include: 

(a) Dynamic address allocation, which hampers usage tracking  i.e. a different IP address is allocated per session, which can make tracking usage by IP address quite difficult. 

Some people prefer to wear discreet disguises
to carry out infringing activities
 in public Wi-Fi areas

(b) The absence of user data on a Public Wi-Fi network  i.e. there is typically no user data retained on public Wi-Fi  networks, unlike in licensed carrier networks.

(c) Permitting anonymous, temporary use, which can be difficult to trace after the event.

This said, the paper recommends that operators use Wi-Fi Protected Access II (WPA2) protocol, which is used for encryption to secure wireless links. This is because "WPA2 is the de facto standard for securing Wi-Fi networks".

This blogger suspects that enforcement via Wi-Fi owners has the potential to quickly become a truly hot topic in the realm of online copyright. Whilst there is not specifically relevant case law in Australia (yet), it may be interesting to note that a few days ago a district Finnish Court ruled that open Wi-Fi owners cannot be held liable for the copyright infringing activities of third parties (see the reports of TorrentFreak and ArsTechnica, and the comment by the Electronic Frontier Foundation).