There was some buzz this past week with the announcement that Skype and Google have both put their support behind the startup known as FON. Simply stated, FON provides the means for broadband subscribers to share their Internet connections with others through wi-fi hotspots. It’s a good idea in principle, but as this article from Forbes.com points out, the endeavor is not without its potential legal obstacles.
As the Forbes.com article observes, FON is cavalierly moving forward even though many broadband users’ agreements with their ISPs prohibit the sharing of accounts. Aside from these contract issues, some other possible questions concerning individual liability for FON users remain.
For example, what if a user sharing a connection distributed infringing content through that connection? Would the primary subscriber be considered an online “service provider” as that term is used in the safe harbor provisions of Section 512 of the Digital Millennium Copyright Act? Perhaps, but that’s probably not what members of Congress had in mind nearly a decade ago when they drafted the DMCA.
What about liability for making defamatory statements through a shared connection? Would the primary subscriber be immune from liability as a publisher under Section 230 of the Communications Decency Act? Once again, although there’s a good chance that the subscriber would find immunity under statute, the situation is quite different than that contemplated by the drafters of the legislation being applied. [More on Section 230 immunity]
Finally, what about distribution of obscene or illegal content? The average Internet user might be a bit uneasy about his or her IP address being associated with illegal pornography or the “chatter” of terrorists.
FON’s FAQ page states unambiguously that users would not be responsible for “illicit” activities of others conducted through a shared Internet connection. Perhaps that’s true, but a wise consumer should question whether the answer is as clear as FON would like it to be.