After having a few run-ins with various over-enterprising institutions, I’ve gotten a pretty good grasp on the state of US Wi-Fi law. Behold, a FAQ.
First of all, you have a right to run Wi-Fi networks, period. The landowner can throw a hissy fit all they like, but (more often than not) you can still set up your hotspot. The rationale is pretty simple.
1. The 2.4GHz band is owned by the public. This isn’t a “landowner’s right”, where each landowner “owns” the radio waves traveling over his/her particular land. It’s like airspace. American Airlines doesn’t consult with you before they fly planes over your house; they consult with the FAA. Similarly, you don’t consult with the landowner before broadcasting radio waves, you consult with the FCC.
2. The FCC has given you permission to broadcast on 2.4GHz (erm, the part that WiFi uses anyway, there are some IRM bands that are still licensed airwaves). This is like the FAA saying you can fly over above 3500 feet–who you’re flying over has no say in the matter.
3. Claims of “you can’t use hotspots because they interfere with our network” are not legally sound. In the eyes of the law, “their network” is no more legitimate than yours, and they have no claim (either through landowner rights or through “first use”) to the airwaves. If they want their own band, they can pay the FCC for licensed spectrum. Otherwise, they have to share it with you/everyone. Period.
4. This leads to something extremely interesting–it’s perfectly legal to “jam” unlicensed 2.4GHz space (as long as you don’t interfere with licensed space or broadcast louder than the normal WiFi ceiling). In particular, it’s perfectly legal to use beacon-layer flooding (bringing up lots of imaginary hotspots) or to talk over transmitters (as long as you don’t go above allowed transmit power).
5. You cannot “sniff” conversations (encrypted or unencrypted) to which you are not a party (47cfr15.9). There was an incident in the not-distant past in which an organization was sniffing wi-fi packets in order to determine the identity of persons operating “unauthorized” networks. This is illegal. Furthermore, if the AP is encrypted, it very likely meets the “access without authorization” test, rendering it a federal trespass crime. It is also my considered (but untested) opinion that breaking WEP/WPA is additionally DMCA violation in some cases.
Okay, well maybe I can’t ban radio transmission, but as the landowner, surely I can keep hotspots (the physical boxes) off my property?
Actually, no. Sure, if the Hotspot Bandit runs on your property, you can issue him a trespass warning, and he and his hotspot can go broadcast on the curb. But if we’re talking about a legal resident / tenant, they can have whatever hotspots they want. Huh?
It’s simple, really. There are rules about what landlords can and cannot do. They can’t not rent to black people or to women or to handicapped people. They also can’t tell you that you can’t use a hotspot. The FCC’s reasoning goes like this: since the 2.4ghz spectrum is unlicensed, anyone can broadcast on it. The only reason to ban hotspots is to prevent people from accessing public airwaves. Therefore, landowners can’t ban them.
The FCC has ruled like this on case after case–against residential landlords, airports, everybody. As long as you have “exclusive use” of an area (basically, you can deny random people off the street entry), you can install a WiFi hotspot. Period. (You can also install small satellite dishes and many other kinds of antennas, and you can even put things on a mast above the roofline, subject to some safety restrictions.)
But my lease / the rules say X and Y!
I can write a lease that says you can’t have any Asian guests. That doesn’t make it even remotely legal. And if anybody tried to enforce it, there would be hell to pay. Same with WiFi.
Sorry. That’s clearly and unequivocally the law.