With the exception of a very few very small bands - the Industrial, Scientific and Medical (ISM) bands - there is no “public” spectrum. All spectrum, save the ISM bands, are allocated (a technical term with a precise legal meaning) to a service (a type of use: Broadcasting, for example, or the Radiolocation (mainly radar) service). Spectrum may then be either assigned (another precise legal term) to one user in one place – usually through a licence, or may be ‘opened’ for general use, usually on a licence exempt (yet another legal term) basis.
The channels you use on your cellular/PCS phone are assigned to Bell or Rogers or one of the other companies. The carrier pays licence fees for the ‘right’ to use that spectrum (specifically to allow it and its paid subscribers to use that spectrum) and it may have had to buy those rights at auction.
Although the licence exempt (LE) spectrum is more ‘open’ it is carefully bound by both technical and procedural rules. Those procedural rules are designed to permit certain types of service under certain conditions. It is difficult, maybe impossible, to:
• Define, in a procedure and with sufficient legal exactness, who may use e.g. a wireless router and for exactly what purpose; and
• Craft technical regulations that make up for the lack of procedural precision.
The intent of the regulations is clear, however: these devices (wireless routers and even higher powered wireless access points) are intended for use in a very confined area: one residence, one coffee shop, etc. It is legal and proper to add a high gain antenna and a range extender to increase the ‘service area’ to include e.g. a very large house or even outbuildings on a property. The government (most governments, as far as I know) have, however, stayed far away from saying that your wireless router is or must be for your exclusive, personal use. The ‘digital commons’ movement has made an effective case that LE spectrum must be flexible to accommodate innovative use.
Let me give you an example: a group of residents (probably Linux/open source folks) in a high-rise decide that it is not sensible for each of them to pay for high-speed Internet access so they form a sort of ’cooperative’ (a collective or even commune, if you like). One member signs up for the best available highest speed service and buys an 802.11n wireless router with a couple of high gain antennas. All members of the commune share the up front capital costs and the monthly service fees. Some members may have to buy a wireless adapter and even a range booster but, eventually, all have quite legal access to the Internet using one ‘wired’ connection and a wireless router.
In (technical) theory the commune could leave its router ‘open’ and, create a ‘campus area network’ of sorts because the high gain antennas extend the signal (at workable levels) both up and down two floors within the building and to one or two other high-rises across the street. Fortunately, for the members of the commune, a lawyer told them that they might have some legal liabilities for some uses of their network and that it would be impractical to limit their liabilities in the way that a commercial organization (Starbucks, for example) can by either limiting coverage to a very confined space and posting public notices (including ‘notices’ on an automatic LAN portal).
They have to adopt another strategy and make ‘free’ access available only to members. In other words they must secure the network and then issue the password only to paying members – which is what universities, for example, do. (The members of the university digital commons do not pay directly – membership is a ‘benefit’ of being on staff or a student, etc.)
They have created a ‘campus area digital commons’ without the normal definition of membership in some defined group – instead they have adopted an “all guns within range” approach. But, in order to avoid the rocks and shoals created by a mishmash of national and international laws and regulations, it is absolutely necessary that the ‘open’ spectrum be used in a PRIVATE manner.
The law is unclear, despite being written with a relatively few, unambiguous words in e.g. the Criminal Code; it is, indeed, a very grey area. But, the intent of the law is clear enough – the owner of the wireless device can be called to answer for its use.* The owner(s) need(s) to adopt some self defence mechanisms aimed at limiting liability. Public notices will do IF they can be seen by everyone within the radio signal’s coverage area. Encryption is the better choice.
”Theft”, I suggest, is not the real issue.
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* Another caveat: the regulations that allow radio owners to be called to account (maybe in a court) were, originally, designed to control RF interference, but some lawyers suggest that they can be used to fix responsibility for other issues like child pornography, identity theft, etc. Judges will decide that, maybe.