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Preventing Flare-Ups with Wi-Fi Hotspots

What churches should know about the legal liabilities of wireless access.

Many churches have created Wi-Fi "hotspots" to accommodate desires for continuous connection to the Internet from a growing number of members. A hotspot is a place where Internet access is available using a wireless device, such as a smartphone, tablet, or laptop. Whether your church has established a Wi-Fi hotspot, or is considering doing so, there are a number of legal issues to consider.

background

There are many reasons for the popularity of hotspots in churches, restaurants, hotels, schools, libraries, and other public establishments. These include:

  • Ease. Churches can easily establish a hotspot by buying a "wireless access point" (WAP) from a local electronics store for $100 to $200. Upon installation, you have a wireless hotspot.
  • Convenience. Besides the WAP, a church usually doesn't need to acquire additional hardware or software to do this. WAPs typically connect to a wired network via a standard connection. Because these devices operate at frequencies above 2 gigahertz, they typically provide very short range communications (100 feet to 500 feet). As a result, coverage is characterized by numerous "hotspots" with a radius of several hundred feet rather than seamless coverage across a wide area.
  • Appeal. The presence of Wi-Fi may attract members of the public.
  • Loyalty. Providing this tool may prompt people to come back.

Hotspot Stats

Recent market research by In-Stat reveals that two-thirds of survey respondents said that the availability of free Wi-Fi infl uences their choice of the establishments they visit. Another 31 percent said Wi-Fi access might infl uence their choice. Only 5 percent of respondents said that Wi-Fi access would have no effect on their choice. While this survey looked at Wi-Fi hotspots maintained by commercial establishments, the results suggest that churches offering a wireless hotspot might see an increase in attendance.

legal issues

Many church leaders are concerned about the potential legal risks associated with providing a Wi-Fi hotspot on church property. Common concerns include the following:

(1) copyright infringement

What if someone uses your church's hotspot to download copyrighted material? For example, a teenager downloads several copyrighted songs from your wireless Internet connection and shares them with friends. The teenager has committed copyright infringement, but what about the church? Is it liable because it facilitated the infringement by allowing the infringer to access the Internet? It's possible, but unlikely, for two reasons.

contributory infringement

The courts have ruled that "third parties," such as hotspot providers, can be "secondarily liable" for the copyright infringement of others on the basis of "contributory infringement." The most often-quoted definition of contributory infringement was provided by a federal appeals court:

One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a contributory infringer. Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2nd Cir. 1971).

This definition contains two requirements for secondary liability based on contributory infringement:

First, the secondary infringer "knows or has reason to know" of direct infringement. Knowledge of specific acts of infringement is not required. One court observed that "if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement." A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

Second, the secondary infringer must induce or "materially contribute to" the infringing conduct. Material contribution can include providing the "site and facilities" for the infringing conduct.

It is doubtful that a church that offers a Wi-Fi connection will satisfy both of these conditions, making it unlikely that it will be liable for copyright infringement committed by persons accessing its Wi-Fi hotspot.

Digital Millennium Copyright Act of 1998

A church's risk of liability for copyright infringement committed by persons who use its Wi-Fi hotspot is also reduced by the Digital Millennium Copyright Act of 1998 (DMCA). Section 512 of the DMCA limits the liability of Internet service providers (ISPs) in circumstances where the provider merely acts as a data conduit, transmitting digital information from one point on a network to another at someone else's request. This limitation covers acts of transmission, routing, or providing connections for the information, as well as the intermediate and transient copies that are made automatically in the operation of a network.

A Wi-Fi hotspot provider's liability for the illegal online acts of users is a question that has yet to be thoroughly vetted by the courts.

In order to qualify for this limitation, the ISP's activities must meet the following conditions:

  • The transmission must be initiated by a person other than the provider
  • The transmission, routing, provision of connections, or copying must be carried out by an automatic technical process without selection of material by the ISP
  • The ISP must not determine the recipients of the material
  • Any intermediate copies must not ordinarily be accessible to anyone other than anticipated recipients, and must not be retained for longer than reasonably necessary
  • The material must be transmitted with no modification to its content

So long as these requirements are met, and a church providing a Wi-Fi hotspot meets the definition of an Internet service provider (ISP), the risk of secondary liability for the copyright infringement of persons using the hotspot is greatly reduced. The DMCA defines an ISP as "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, or material of the user's choosing, without modification to the content of the material as sent or received." No court has addressed the question of whether this definition applies to Wi-Fi hotspots maintained by churches. While it is likely that it does, churches should consult with legal counsel for clarification.

(2) child pornography

Can a church that offers a Wi-Fi hotspot be liable for a user's acts of downloading or disseminating child pornography?

criminal liability

The possibility of criminal liability is an important question for two reasons. First, state and federal laws impose substantial penalties on persons who download, possess, or disseminate child pornography. To illustrate, federal law makes it a felony to "knowingly receive, or distribute, any visual depiction of a minor engaging in sexually explicit conduct." Second, law enforcement agencies are stepping up their enforcement of child porn laws and sexual exploitation laws, and often use agents posing a minors to entrap offenders.

A Wi-Fi hotspot provider's liability for the illegal online acts of users is a question that has yet to be thoroughly vetted by the courts. For now, it would appear that hotspot providers that are not aware of illegal acts by hotspot users cannot be liable for those acts, based on the general rule that criminal liability requires knowledge of illegal behavior. Several federal courts have upheld the constitutionality of the federal law criminalizing the possession or distribution of child pornography because it conditions criminal liability on actual knowledge of the unlawful behavior.

Most Wi-Fi hotspot operators have no idea what persons are doing who access the Internet using the hotspot's portal, and this makes it unlikely that the hotspot operator would face criminal liability.

To date, no federal court has imposed or upheld criminal liability on a hotspot provider solely on the ground that it made an Internet connection available to a person who accessed, downloaded, or disseminated illegal child pornography. This may change in the future, and legislatures may one day make child pornography a "strict liability" crime, meaning that no knowledge of illegal behavior is necessary. Churches that have established a Wi-Fi hotspot should be aware of these possibilities, and monitor legal developments.

civil liability

A church's risk of criminal liability for a person's use of its Wi-Fi hotspot for accessing, downloading, or disseminating child pornography is low. However, federal law also provides that anyone "aggrieved" by the distribution of child pornography may seek compensatory and punitive damages in a civil lawsuit against the persons responsible. Could a church that offers a Wi-Fi hotspot face possible civil liability on this basis if someone uses the church's hotspot to access the Internet to view, download, or disseminate child porn? Possibly, but not likely, thanks to the federal Communications Decency Act (CDA).

Section 230 of the CDA states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The CDA defines an "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet or any other interactive computer service."

This provision bars plaintiffs from holding Internet service providers legally responsible for information that third parties created and developed. As one court said, "Congress has established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them." Other federal courts have observed:

  • "The majority of federal [appeals courts] have interpreted the CDA to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a thirdparty user of the service."
  • "Section 230 blocks civil liability when web hosts and other ISPs refrain from filtering or censoring the information that third parties created on their sites."
  • "Under the CDA the defendant ISP is not liable for failing to monitor, screen, or delete allegedly defamatory content from its site."
  • "Section 230 of the Communications Decency Act errs on the side of robust communication and prevents the plaintiffs from moving forward with their claims" that a company that allowed users to access the Internet via its computers could be held liable for the actions of one of those users.

As a result, based on current precedent, it is unlikely that a church is exposed to civil liability as a result of its operation of a Wi-Fi hotspot that persons use to download or disseminate illegal child porn.

Key point. One federal appellate court concluded that section 230 of the CDA cannot be understood as "a general prohibition of civil liability for website operators and other online content hosts." However, while this court construed section 230 to permit liability for ISPs, it limited that liability to ISPs that intentionally designed their systems to facilitate illegal acts, such as stealing music. Specifically, it held that an ISP could not be held liable for allowing third parties to place ads in violation of the Fair Housing Act on its website if the ISP did not induce the third party to place discriminatory ads. Chicago Lawyers' Committee for Civil Rights v. Craigslist, 519 F.3d 666 (7th Cir. 2008).

(3) defamation

Can a church that offers a Wi-Fi hotspot be liable for defamatory material disseminated online by a user? As with child porn, the answer is probably no. Section 230 of the federal Communications Decency Act specifies that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," and this provision prevents Internet service providers from being legally responsible for information that third parties created and developed. Several courts have ruled that Internet service providers are not liable for defamatory material posted online without their knowledge. Consider the following example:

Example. A federal appeals court ruled that an Internet service provider was immune under section 230 of the CDA for allegedly defamatory statements posted to a website using the ISP's Internet access. The court noted that the ISP did not design the website to be a portal for defamatory material or do anything to induce defamatory postings, and was not an information content provider. Johnson v. Arden, 614 F.3d 785 (8th Cir. 2010).

risk management

What steps can a church take to reduce its exposure to liability based on inappropriate use of an Internet connection made available by its Wi-Fi hotspot? There are many precautions that should be considered, including the following:

1. Require all Internet users to agree to "terms and conditions of use" as a condition to gaining access. Such terms and conditions typically include several items, including the following:

  • A warning that the connection is not secure, and that users who use the Wi-Fi hotspot do so entirely at their own risk
  • A requirement that users be of a specified age or older (i.e., 18)
  • An agreement to refrain from copyright violations or any illegal or offensive behavior, including defamation, theft, fraud, harassment, or access to and dissemination of child porn
  • A recommendation that users not disclose passwords or credit card information
  • A disclaimer of all warranties
  • A limitation on liability statement to the effect that the church, as the hotspot provider, is not liable for any wrongful acts by any user, or for any user's damages resulting from a use of the hotspot, including but not limited to (1) loss or damage to a user's computer files due to viruses or hacking; (2) identity theft; and (3) loss of confidential information, credit card numbers, and passwords

2. Consider contracting out the installation and maintenance of a Wi-Fi hotspot on your premises. Many companies perform these services for a fee.

3. Require users to register. This can act as a deterrent to inappropriate conduct.

4. Use filtering software to block access to inappropriate websites.

A recent survey of public perceptions and practices regarding Wi-Fi usage revealed that 15 percent of users routinely purchase goods online even though doing so requires disclosure of their credit card information and other personal information over an unsecured connection.

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Posted:
  • July 2, 2012

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