The Local Court of Wuppertal (AG Wuppertal) ruled on 3 April 2007 - AZ: 22 Ds 70 Js 6906/06 - that anyone who logs into an unencrypted WLAN network operated by flat rate in order to "surf the Internet" (so-called "black surfing") is liable to prosecution for violating §§ 89, 148 of the Telecommunications Act (TKG) and §§ 44, 43 of the Federal Data Protection Act (BDSG).
The case to be decided by the Wuppertal District Court was based on the following facts: The defendant had found out that he could dial into the open wireless network of witness A from the pavement. He was able to do this because the witness A had not encrypted his internet access by means of a WLAN router. From the pavement, the accused therefore used Witness A's internet access. He did not have Witness A's permission for this use. When Witness A noticed this, he called the police. Although Witness A did not suffer any financial damage as a result of the accused's act, as he had a so-called flat rate connection, he filed a criminal complaint with the police. The police then confiscated the accused's laptop and network adapter.
The accused admitted that he had used so-called "black surfing" because he could not afford an internet connection himself at the moment for financial reasons. He had not thought about the financial disadvantages of the owner of this internet connection.
In the opinion of the Wuppertal District Court, the defendant violated the so-called interception ban according to section 89 sentence 1 TKG by this conduct and thus made himself liable to prosecution according to section 148 I. 1 sentence 1 TKG. According to the AG Wuppertal, interception of communications encompasses the facts of the case. Accordingly, the WLAN router was an electrical transmitting and receiving device and thus a radio device within the meaning of § 89 TKG. The term "messages", which was to be interpreted very extensively in accordance with the decision of the Federal Court of Justice on radar warning devices, also included the allocation of an IP address. Messages were thus intercepted. In addition, the accused had made himself liable to prosecution through his conduct pursuant to § 44 BDSG in conjunction with § 43 I. 2 No. 12 of the Federal Data Protection Act. The prerequisite for this was the existence of personal data. According to the definition of section 3, paragraph 1 of the Federal Data Protection Act, data is individual information about personal or factual circumstances of a specific or identifiable person. In principle, IP addresses and access data also constituted such data. In particular, the IP address could be traced back and assigned to a specific person at any time. By accessing the router, personal data within the meaning of this law would be retrieved. Furthermore, it was a prerequisite that the respective perpetrator acted with the intention to enrich or harm. It was undoubtedly the defendant's goal to obtain internet use, which is usually only granted for a fee. The defendant wanted to enrich himself for this value of the use. In addition, he had accepted that witness A might not have a flat rate and would have to charge for his internet connection according to volume or time. In the opinion of the Wuppertal Local Court, the unauthorised use of an unencrypted wireless computer network is therefore punishable. The accused could also not expect that a so-called free "hot spot" would be set up in a purely residential area.
The defendant was therefore guilty of a combined offence against § 89 sentence 1 and 146 I. TKG, §§ 43 I. No. 3, 44 BDSG, §§ 52, 59 Criminal Code (StGB).
The accused was warned according to § 59 StGB (German Penal Code), as the legal situation had not been clarified so far in the opinion of the Wuppertal District Court. The Wuppertal District Court imposed a fine of 20 daily sentences of €5.00 each to deter the accused from so-called "black surfing". The accused did not agree to a discontinuation of the proceedings in exchange for giving up the laptop. According to § 74 of the Criminal Code, the laptop and its adapter were to be confiscated as instrumentalities. The Wuppertal District Court was one of the first courts to deal with the criminal liability of so-called "black surfing". It can therefore only be strongly advised against logging into unencrypted Wi-Fi networks without the appropriate authorisation.
Source: Wuppertal District Court, judgement of 03.04.2007, Ref: 29 Ds 70 Js 6906/06 (16/07)
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)