BF2S Forums German High Court: It's YOUR fault

The German high court has gone too far in this, but generally speaking Europeans do seem to have a different interpretation of negligence.
Its why we are careful where we leave our car keys, lock up our firearms, put locks on dangerous equipment and so on.

In the US it seems however stupid someones actions, any consequences are someone elses fault, hence all the lawsuits.
With liberty comes personal responsibility, no-one seems to get that though.

There is no negligence on the part of the person who left the neutral item there, where no reasonable person would assume a crime would be committed with it or harm would come of it.

If a crime or harm can come of it then its not a 'neutral item' now is it?

I do, my house is locked.

Door to house: Locked
Door to shed: Locked
WiFi connection: PW protected and MACID locked.

Nothing to see here.

JohnG@lt wrote:

Dilbert_X wrote:

The German high court has gone too far in this, but generally speaking Europeans do seem to have a different interpretation of negligence.
Its why we are careful where we leave our car keys, lock up our firearms, put locks on dangerous equipment and so on.

In the US it seems however stupid someones actions, any consequences are someone elses fault, hence all the lawsuits.
With liberty comes personal responsibility, no-one seems to get that though.

There is no negligence on the part of the person who left the neutral item there, where no reasonable person would assume a crime would be committed with it or harm would come of it.

If a crime or harm can come of it then its not a 'neutral item' now is it?

I can kill you with a rolled up newspaper. Make sure you store your newspapers in a safe place.

They need to lock you up when you go to Germany.  Screw newspapers, hands work wonders on throats, temples, etc.

FEOS wrote:

Bertster7 wrote:

FEOS wrote:

I have a pocketknife. I left it on the counter a work. Someone took it and killed someone with it. I guess I should be held accountable then, right?

I have a coathanger. I left it in the closet in my office at work. Someone took it and used it to assault someone with it. I guess I should be held accountable then, right?

I was at a baseball game. I brought a baseball bat with me. Someone took that baseball bat and attacked the umpire with it after a bad call. I guess I should be held accountable then, right?

In each case, there was an item that no reasonable person would assume was something that would be used to commit a crime and would require special protection, yet it was used to do just that. Why should someone assume their internet connection will be used to commit a crime? Should we all assume our cars will be used to commit crimes if they aren't locked at all times, as well?

This is a flawed ruling. On many levels.

Depends on the circumstances. In some of those instances, if you had been negligent, then you should be held accountable - not for the crimes themselves, but for not taking the proper precautions to minimise the risk.

It all depends on circumstances. You leave a pocket knife in a childrens play area and some children end up getting stabbed - damn right you should be held accountable.

The point being, there is no inherent negligence. The negligence is on the part of the person who chose to take the inherently neutral item and commit the crime with it. There is no negligence on the part of the person who left the neutral item there, where no reasonable person would assume a crime would be committed with it or harm would come of it.

That's the great thing about the law here in the US. We have the "reasonable person" argument. I guess Europe (minus England, apparently) doesn't worry about that.

What do you mean minus England apparently? We came up with the concept.

There is no inherent negligence, but internet crime carried out on unsecured wireless connections is on the up. This means it is becoming resonable to expect that if you do not take some steps to secure your connection there is a moderately high chance it could be illegally used (particularly if you consider that anyone using it without the permission of the billpayer is actually committing a crime). Therefore it is perfectly reasonable to assert that not securing these connections is negligent.

It's all about how likely these things are. It is reasonable to expect that an unsecured wireless network in a densely populated area will be used fraudulently at some point. Not taking steps to prevent that is negligent.

Bertster7 wrote:

FEOS wrote:

Bertster7 wrote:

Depends on the circumstances. In some of those instances, if you had been negligent, then you should be held accountable - not for the crimes themselves, but for not taking the proper precautions to minimise the risk.

It all depends on circumstances. You leave a pocket knife in a childrens play area and some children end up getting stabbed - damn right you should be held accountable.

The point being, there is no inherent negligence. The negligence is on the part of the person who chose to take the inherently neutral item and commit the crime with it. There is no negligence on the part of the person who left the neutral item there, where no reasonable person would assume a crime would be committed with it or harm would come of it.

That's the great thing about the law here in the US. We have the "reasonable person" argument. I guess Europe (minus England, apparently) doesn't worry about that.

What do you mean minus England apparently? We came up with the concept.

There is no inherent negligence, but internet crime carried out on unsecured wireless connections is on the up. This means it is becoming resonable to expect that if you do not take some steps to secure your connection there is a moderately high chance it could be illegally used (particularly if you consider that anyone using it without the permission of the billpayer is actually committing a crime). Therefore it is perfectly reasonable to assert that not securing these connections is negligent.

It's all about how likely these things are. It is reasonable to expect that an unsecured wireless network in a densely populated area will be used fraudulently at some point. Not taking steps to prevent that is negligent.

First...re-read what I wrote, Bert.

Second: That is the first sensible, valid argument I've seen. However, the onus should be on the WAP manufacturers to institute security on the devices by default, rather than openness by default if that becomes the legal case.

Shahter wrote:

FEOS wrote:

Intended usage is quite easily determined by the SSID that is broadcast

this is simply not true. go out there and see for yourself.

I have. Hence why I made the statement.

Shahter wrote:

FEOS wrote:

Public networks are named to clearly identify them as such (Starbuck's, etc).

no, they aren't. well, i haven't been in states or germany, but in russia, in ireland, in switzerland - they are all there, named like "Linksys this", or "ZX-330 that".

If pros like you are setting them up for those people...

Shahter wrote:

FEOS wrote:

If someone leaves their front door open, do you just walk into their house?

no, because it's obvious i'd be tresspassing.

ORLY? That would be an ILLEGAL ACT then, wouldn't it? Making whatever you did after that "fruit from the poison tree", wouldn't it? Making the homeowner NOT RESPONSIBLE for whatever you did with whatever you took from that house after you trespassed NOR RESPONSIBLE FOR YOUR ORIGINAL ACT OF TRESPASSING...wouldn't it?

Shahter wrote:

FEOS wrote:

You don't use an unprotected wireless connection just because it's there and it's easy to do.

i do. all the time. because there's no way to tell which is which. there's no regualtion whatsoever, at least in russia, as to which ssid should be broadcast by anybody, be it a comany or a private citizen. is there one in usa? or in germany?

If there's no way to tell which is which, and you could then, by definition easily be using a private citizen's without their knowledge or consent (which is illegal, btw)--then why do you? Because you can?

Due diligence is the standard.

Shahter wrote:

FEOS wrote:

You don't prevent the potential crime from happening by trampling on the civil liberties of people because you, as a technogeek, think it's OK.

germans are about to, and not because they are technogeeks, but because they'd rather have their personal responsibility and common sence before the fucking liberties. and i, personally, agree with them.

The personal responsibility is on the part of the person who wantonly uses random wireless access points, not the private citizen who sets up their WAP. It is the former who is infringing on the rights of the latter, not the other way around.

Shahter wrote:

FEOS wrote:

It's not a matter of technical difficulty in employing password protection on a wireless network. It's a matter of punishing an innocent person for another person's criminal act.

FEOS wrote:

I realize you have nothing. That's kind of the point.

no matter how many times you repeat this bullshit, it won't become true. and i already answered this several times, so whatever.

See my post above. Your rights extend to where they infringe on mine. That is the case in Germany. Your right to go around and use random unsecured wireless access points without regard to who they belong to (ie, who is PAYING for that service that YOU are using for FREE), especially if you are going to engage in criminal activity with said access point, infringes on their right to have that WAP unfettered by interference from the government. Further, the fact that you choose to behave in an irresponsible manner does not obligate them to either 1) behave differently nor 2) pay a fine when you do.

Shahter wrote:

FEOS wrote:

Shahter wrote:

FEOS wrote:

Public networks are named to clearly identify them as such (Starbuck's, etc).

no, they aren't. well, i haven't been in states or germany, but in russia, in ireland, in switzerland - they are all there, named like "Linksys this", or "ZX-330 that".

If pros like you are setting them up for those people...

oh, so, knowing jackshit about me, and seeing how i don't go bragging about my certifications, you assume i'm not a "pro". kewl.

I didn't brag about anything. I was disabusing you of your flawed notion that I "didn't know anything about the technical side of this stuff". You were the one bragging about being a "field guy". You stepped into that one.

Shahter wrote:

FEOS wrote:

Shahter wrote:

FEOS wrote:

If someone leaves their front door open, do you just walk into their house?

no, because it's obvious i'd be tresspassing.

ORLY? That would be an ILLEGAL ACT then, wouldn't it? Making whatever you did after that "fruit from the poison tree", wouldn't it? Making the homeowner NOT RESPONSIBLE for whatever you did with whatever you took from that house after you trespassed NOR RESPONSIBLE FOR YOUR ORIGINAL ACT OF TRESPASSING...wouldn't it?

no. for the act of trespassing - no.

But you're saying essentially the opposite WRT wireless access points. Just because "the door is left open", you should be able to walk in, and regardless of what you do after that, the owner should have to pay a fine for leaving the door open. EVEN THOUGH YOU PERFORMED AN ILLEGAL ACT BY WALKING IN THE DOOR.

What part of that is hard to understand?

Shahter wrote:

FEOS wrote:

Shahter wrote:

i do. all the time. because there's no way to tell which is which. there's no regualtion whatsoever, at least in russia, as to which ssid should be broadcast by anybody, be it a comany or a private citizen. is there one in usa? or in germany?

If there's no way to tell which is which, and you could then, by definition easily be using a private citizen's without their knowledge or consent (which is illegal, btw)--then why do you? Because you can?

yes, because i can. and because there's no working and reasonable regulations in place limiting me in doing this. i'm not concerned in the slightest with laws than don't work. and yes, i don't care about the rights of others which are as easily protected as the right not to have ones wireless connection used accidentally. anybody's welcome to sue me for this - it'll be fun to see how far they go.

Yes, there are. They are called privacy laws.

The highlighted statement would imply that you, my friend, are a sociopath. Have fun with that.

Shahter wrote:

FEOS wrote:

Shahter wrote:

germans are about to, and not because they are technogeeks, but because they'd rather have their personal responsibility and common sence before the fucking liberties. and i, personally, agree with them.

The personal responsibility is on the part of the person who wantonly uses random wireless access points, not the private citizen who sets up their WAP. It is the former who is infringing on the rights of the latter, not the other way around.

both sides have responsibilities in this case. it's as much ones personal responsibility to take care of his/her stuff as the responsilibity for their choices and actions.

They are taking care of their stuff. It is reasonable to assume that people will not be going around violating the law "just because they can" in a sociopathic manner. It is further reasonable to assume that one would not be fined for another's sociopathic behavior.

Shahter wrote:

FEOS wrote:

See my post above. Your rights extend to where they infringe on mine. That is the case in Germany. Your right to go around and use random unsecured wireless access points without regard to who they belong to (ie, who is PAYING for that service that YOU are using for FREE), especially if you are going to engage in criminal activity with said access point, infringes on their right to have that WAP unfettered by interference from the government. Further, the fact that you choose to behave in an irresponsible manner does not obligate them to either 1) behave differently nor 2) pay a fine when you do.

this is all very cool, but only if there are reasonable laws and procedures in place regulating all this. it's obvious there's no such laws in germany yet, so they had to go with this password-thing for now. if they are any good they'll develop this further, but untill then - order before the fucking liberties, nothing's wrong with that.

Sure there are reasonable laws in place. They are the ones that punish those who actually commit crimes, rather than punishing those who are victims of crimes.

Shahter wrote:

edit: and this

FEOS wrote:

the fact that you choose to behave in an irresponsible manner does not obligate them to either 1) behave differently nor 2) pay a fine when you do.

you still don't get it? they should behave differently or pay a fine regardless if somebody does take advantage of their insecure network or not. it isn't tied to any illegal action at all.
this is supposed to be a pro-active measure, ment to reduce the chances of wireless networks being used by criminals.

Actually, it is tied to an illegal action. It kicks in when someone else is convicted of a crime and that crime is traced back to another person's unsecured WAP. It's in the OP. They aren't going around fining people just for having non-password-protected WAPs.

Shahter wrote:

- order before the fucking liberties, nothing's wrong with that.

Well, there is the basic disagreement.
Shahter wants large amounts of order, and places little value on "fucking liberties."
FEOS values liberty, and would not want to punish the victim for leaving the "door" open.

FEOS wrote:

Bertster7 wrote:

FEOS wrote:

First...re-read what I wrote, Bert.

Second: That is the first sensible, valid argument I've seen. However, the onus should be on the WAP manufacturers to institute security on the devices by default, rather than openness by default if that becomes the legal case.

That's a very good point. It would make more sense to have the manufacturers setting passwords as standard.

But that doesn't undermine the fact that if it is likely that wireless networks will be used illegally if unsecured, then not securing them could be considered negligent and so having some legislation to reflect that is not as outrageous as it sounds.

I think it is still a bridge too far. They are still punishing an innocent party for another's malfeasance. That's just plain wrong.

I agree.  Besides, the actual reasoning behind this law is mostly to satisfy copyright groups who are trying to use the government in everyway possible to fight piracy.

Again, it's a very clever move on their part, because it's easy to rationalize this law under a murky definition of negligence.

Shahter wrote:

FEOS wrote:

Shahter wrote:

oh, so, knowing jackshit about me, and seeing how i don't go bragging about my certifications, you assume i'm not a "pro". kewl.

I didn't brag about anything. I was disabusing you of your flawed notion that I "didn't know anything about the technical side of this stuff". You were the one bragging about being a "field guy". You stepped into that one.

without first hand experiance certifications mean jackshit - you were and still are talking about this issue as if you have never actually used an open wireless network.

So now you're implying I have no first-hand experience? With what? Using a private person's open wireless network without permission?

I guess you're right. I don't have experience with that. Because it's FUCKING ILLEGAL.

Shahter wrote:

FEOS wrote:

Shahter wrote:

FEOS wrote:

ORLY? That would be an ILLEGAL ACT then, wouldn't it? Making whatever you did after that "fruit from the poison tree", wouldn't it? Making the homeowner NOT RESPONSIBLE for whatever you did with whatever you took from that house after you trespassed NOR RESPONSIBLE FOR YOUR ORIGINAL ACT OF TRESPASSING...wouldn't it?

no. for the act of trespassing - no.

But you're saying essentially the opposite WRT wireless access points. Just because "the door is left open", you should be able to walk in, and regardless of what you do after that, the owner should have to pay a fine for leaving the door open. EVEN THOUGH YOU PERFORMED AN ILLEGAL ACT BY WALKING IN THE DOOR.

What part of that is hard to understand?

nothing. everything's clear. as i already said numerous times: the owner of a wireless network is not being held responsible for any illegal act performed by those who illegally used their network. they are only being punished for leaving the fucking door open.

And they are being punished for that only because an illegal act was performed after someone walked in that door--even though leaving the door open is not illegal. So they ARE being punished for someone else's illegal act. Otherwise, having an open network would have to be illegal in and of itself, not just when someone else does something illegal with it.

Shahter wrote:

FEOS wrote:

Shahter wrote:

FEOS wrote:

If there's no way to tell which is which, and you could then, by definition easily be using a private citizen's without their knowledge or consent (which is illegal, btw)--then why do you? Because you can?

yes, because i can. and because there's no working and reasonable regulations in place limiting me in doing this. i'm not concerned in the slightest with laws than don't work. and yes, i don't care about the rights of others which are as easily protected as the right not to have ones wireless connection used accidentally. anybody's welcome to sue me for this - it'll be fun to see how far they go.

Yes, there are. They are called privacy laws.

which, in the absence of proper regulations enforcement, simply don't work.

Fixed. There's the problem. Enforce existing privacy laws, piling on punishment for violating the private users' privacy by using their network resources to perform the illegal act, in addition to any punishment for the illegal act performed. Don't punish the private user.

Shahter wrote:

FEOS wrote:

The highlighted statement would imply that you, my friend, are a sociopath. Have fun with that.

you can label me however you wish, it doesn't change the fact that it's not my fault that there's no proper laws regulating this matter. when there are - like the one you suggested about placing it upon wap manufactureres to enforce the use of passwords and encryption in all acces points, or, for example, mandatory registration and monitoring (by isp's and law enforcement institutions) of all open wireless networks run by private citizens and education/certification in the use of said networks for those citizens - then you'll have a point.

They have the ability to trace the origin of the activity to a given wireless network. Why not just do what I stated above? They know that the criminal then used someone else's network without authorization, so they can pile on privacy law violations on top of the other crimes. There is no need to penalize the user who was victimized by the criminal in the first place.

Shahter wrote:

FEOS wrote:

Shahter wrote:

FEOS wrote:

The personal responsibility is on the part of the person who wantonly uses random wireless access points, not the private citizen who sets up their WAP. It is the former who is infringing on the rights of the latter, not the other way around.

both sides have responsibilities in this case. it's as much ones personal responsibility to take care of his/her stuff as the responsilibity for their choices and actions.

They are taking care of their stuff. It is reasonable to assume that people will not be going around violating the law "just because they can" in a sociopathic manner. It is further reasonable to assume that one would not be fined for another's sociopathic behavior.

in a perfect world - yes. but on this planet it is just as reasonable to assume that if you leave your wireless network unsecured there's very high probability of it being used by criminals.

So punish the victims? Makes perfect sense.

Shahter wrote:

FEOS wrote:

Shahter wrote:

edit: and this

you still don't get it? they should behave differently or pay a fine regardless if somebody does take advantage of their insecure network or not. it isn't tied to any illegal action at all.
this is supposed to be a pro-active measure, ment to reduce the chances of wireless networks being used by criminals.

Actually, it is tied to an illegal action. It kicks in when someone else is convicted of a crime and that crime is traced back to another person's unsecured WAP. It's in the OP. They aren't going around fining people just for having non-password-protected WAPs.

re-read it. it clearly says that every private network should be password protected, but the fine only applies in case an illegal action is performed with the use of said network, which, tbh, makes this law just about as useless as if there wasn't any law of the kind still. however, the move to have something like this in place is definitely right, imo, and, as i said, if they are any good at what they do they'll develop it further.

There is nothing right about it. The punishment should fall on the criminal--the one who committed the crime. Not the person upon whom a crime was committed. Throw on another charge of "illicit use of private resources" or something, up the jail time, ensure that everyone knows that they will face increased jail time for using someone else's WAP without permission if they get busted for doing something else illegal. They're already enforcing the other laws, this would be like making sure someone has proof of insurance or is wearing their seatbelt in their car. If you get stopped for speeding and don't have those, you get extra citations for that.

FEOS wrote:

So now you're implying I have no first-hand experience? With what? Using a private person's open wireless network without permission?

I guess you're right. I don't have experience with that.

how do you know that? because you only access networks with ssid's like "starbucks" and the likes? what if those weren't ment to be used without permission?

FEOS wrote:

Shahter wrote:

as i already said numerous times: the owner of a wireless network is not being held responsible for any illegal act performed by those who illegally used their network. they are only being punished for leaving the fucking door open.

And they are being punished for that only because an illegal act was performed after someone walked in that door--even though leaving the door open is not illegal. So they ARE being punished for someone else's illegal act. Otherwise, having an open network would have to be illegal in and of itself, not just when someone else does something illegal with it.

as i said, for those who have no specific education and skills it should be illegal to have an open wireless network. what they've done in germany is half a measure ment to reduce the possibility of this hole in their legislation being abused for the time being.

FEOS wrote:

Shahter wrote:

FEOS wrote:

Yes, there are. They are called privacy laws.

which, in the absence of proper regulations enforcement, simply don't work.

Fixed. There's the problem. Enforce existing privacy laws, piling on punishment for violating the private users' privacy by using their network resources to perform the illegal act, in addition to any punishment for the illegal act performed. Don't punish the private user.

well, unfortunately in this case there's no practical ways of enforcing these laws without introducing some restrictions, and you of all people should know it if you really are as well tained a professional as you claim to be.

FEOS wrote:

Shahter wrote:

FEOS wrote:

The highlighted statement would imply that you, my friend, are a sociopath. Have fun with that.

you can label me however you wish, it doesn't change the fact that it's not my fault that there's no proper laws regulating this matter. when there are - like the one you suggested about placing it upon wap manufactureres to enforce the use of passwords and encryption in all acces points, or, for example, mandatory registration and monitoring (by isp's and law enforcement institutions) of all open wireless networks run by private citizens and education/certification in the use of said networks for those citizens - then you'll have a point.

They have the ability to trace the origin of the activity to a given wireless network.

and what would they find there? a mac address of a wireless card used to establish the connection - nothing to go by.

FEOS wrote:

Why not just do what I stated above? They know that the criminal then used someone else's network without authorization, so they can pile on privacy law violations on top of the other crimes. There is no need to penalize the user who was victimized by the criminal in the first place.

oh, go ahead and devise a way to get the evidence required. get back to me when you are done and we'll discuss this further.

FEOS wrote:

Shahter wrote:

FEOS wrote:

They are taking care of their stuff. It is reasonable to assume that people will not be going around violating the law "just because they can" in a sociopathic manner. It is further reasonable to assume that one would not be fined for another's sociopathic behavior.

in a perfect world - yes. but on this planet it is just as reasonable to assume that if you leave your wireless network unsecured there's very high probability of it being used by criminals.

So punish the victims? Makes perfect sense.

no, punish the careless. makes perfect sence to me.

FEOS wrote:

Shahter wrote:

FEOS wrote:

Actually, it is tied to an illegal action. It kicks in when someone else is convicted of a crime and that crime is traced back to another person's unsecured WAP. It's in the OP. They aren't going around fining people just for having non-password-protected WAPs.

re-read it. it clearly says that every private network should be password protected, but the fine only applies in case an illegal action is performed with the use of said network, which, tbh, makes this law just about as useless as if there wasn't any law of the kind still. however, the move to have something like this in place is definitely right, imo, and, as i said, if they are any good at what they do they'll develop it further.

There is nothing right about it. The punishment should fall on the criminal--the one who committed the crime. Not the person upon whom a crime was committed. Throw on another charge of "illicit use of private resources" or something, up the jail time, ensure that everyone knows that they will face increased jail time for using someone else's WAP without permission if they get busted for doing something else illegal. They're already enforcing the other laws, this would be like making sure someone has proof of insurance or is wearing their seatbelt in their car. If you get stopped for speeding and don't have those, you get extra citations for that.

i see your point and i already agreed with you on a number of issues. however, i still stand by my opinion that, untill a better technical and legal ways of regulating this have been found, making it mandatory for every private citizen running a wireless network to implement simple measures of network security already available to them with just about any equipment they might be using is absolutely reasonable.

Last edited by Shahter (2010-05-24 08:30:40)

Can't agree as much as I'd like to - stupidity isn't a crime in and of itself.

(I actually posted this before... but it decided to auto-duplicate itself and then when I went to delete one it deleted both )

(edit: and again!)

Last edited by Spark (2010-05-25 00:03:28)