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Using a Wireless Internet Connection without Permission
Adapted from a Shiur given by Rabbi Zvi Ralbag
In today’s world, Poskim are often faced with Halachic questions related to technology that did not exist in earlier times. Take, for example, the following commonly asked question: Is it permitted to use a neighbor’s wireless internet connection without permission? On one hand, perhaps, since one would usually have to pay for a wireless internet connection, the neighbor whose wireless connection one is using can indeed demand payment. On the other hand, perhaps one can argue that since the neighbor does not lose anything monetarily when another individual uses his wireless, there is no obligation to pay for using it.
Despite the lack of Halachic sources that deal directly with wireless internet, there is a discussion in the Gemara (Bava Kamma 20a) that may hold the key for resolving this. The Gemara queries whether one who lives in someone else’s yard (we will refer to a house, which may be a more common case) without the owner’s knowledge or permission (i.e., squatting) must pay the owner for his benefit.
The Gemara analyzes the specifics of the case: If the house is not usually rented out by the owner, and the squatter wouldn’t have paid money for the usage he received (i.e. he has a house, or he would have slept in a car), then it is an example of zeh lo neheneh v’zeh lo hasser: one does not benefit, and the other does not lose anything. In such a case there is certainly no question that he is exempt from any payment.
The Gemara continues: If the house is usually rented out, and the owner would have rented it to another if not for the presence of this person, then the owner suffers a financial loss, and the person does derive monetary benefit, as he would have spent money to stay elsewhere. It is then a case of zeh neheneh v’zeh hasser, one benefits while the other suffers a loss on his account. In such a case, the squatter would certainly have to pay. The Gemara concludes that the inquiry refers to a case where the house was not intended to be rented out, so the owner doesn’t lose anything, but the one living there does benefit, as he would have paid to stay somewhere else. This is known as a case of zeh neheneh v’zeh lo hasser – one benefits while the other doesn’t incur a loss.
Consequently, the question of the Gemara is whether we should say that since the owner didn’t lose anything, the “squatter” is exempt from payment, or perhaps say instead that if benefit is derived, one is obligated to pay, even if no financial loss was involved.
Although the Gemara does not resolve this question conclusively (it is a dispute between numerous Amora’im), Maran in Shulhan Aruch (H.M. 363:6) rules that one is exempt from paying in such a case. What might be the basis for this ruling? Perhaps it can be understood in one of two ways:
A) There is an obligation to pay only when one takes something from another thereby causing a loss. However, if no loss is caused, then no obligation exists to pay.
B) The obligation to pay is determined by the Hana’ah – benefit – derived, as the benefit is worth money. Therefore, we should say that anyone who derives benefit from another should pay, even if no loss is caused. However, instead we invoke the principle of “Kofin ‘Al Middat Sedom” – rooting out the ethos of Sedom, that if a person does not lose anything, we can force him to forego receiving payment for it.
It would seem from an analysis of Tosafot and other sources that the second explanation may be the accepted one. Tosafot say that in a scenario where someone is living in another’s home without the owner’s knowledge (Shelo MiDa’ato), even if it is usually rented out, the one who benefits is still exempt from paying. The reason is that such benefit is only considered damage of Gerama – indirect damage, and does not actually destroy anything. Therefore, according to Tosafot, in a case of zeh lo neheneh v’zeh hasser, where one does not benefit but the other (the owner) suffers a loss, the one benefiting is still exempt.
The problem with Tosafot is that according to this, why does the Gemara state that one is obligated to pay for benefit if it was gained at the expense of a loss for the owner — isn’t that also a case of Gerama?
R. Aharon Kotler (Sefer Mishnat Rav Aharon) answers that evidently according to Tosafot, the basis for liability (“mehayev”), is not the loss experienced by the owner (in that he could have rented the property out), since that is defined as Gerama. Rather, the basis for liability is the benefit of the one living there. Thus, the only reason why one need not pay in a case of zeh neheneh v’zeh lo hasser – this one benefits and the other doesn’t lose – is because the owner does not lose anything, and we apply the principle of Kofin ‘Al Middat Sedom and do not allow him to charge. But in a case where the owner experiences a loss and is considered a “hasser”, we don’t say Kofin ‘Al Middat Sedom.
According to this approach, that the determining factor is the benefit, we can better understand the following Halacha mentioned in the Gemara (Bava Kamma 20b) and cited in the Shulhan Aruch: If a person lives in another’s house Shelo MiDa’ato – without his knowledge, in a situation of zeh neheneh v’zeh lo hasser (as described above), but the “squatter” then causes even a small amount of damage to the walls (i.e. they become slightly black, which causes the value of the house to decrease slightly), the owner is now considered to have incurred a loss – a hasser, and the squatter must pay, even the loss was minimal.
The Rema then adds (363:7) that in that case, one doesn’t just pay for the small damage done, but rather for the full amount of the benefit, which would be the fair market rent. Some commentaries ask on the Rema, why should one have to pay the full amount (since if not for the damage, he would have been exempt) shouldn’t it just be limited to the small amount of damage caused?
The answer is, that according to our second explanation, the benefit the squatter received should’ve technically obliged him to pay, only that since the owner incurs no loss it is unfair to charge. Thus, if there is a slight loss, it is fair to charge for the benefit, and that benefit is valued at the fair market rent price.
This explanation can also help us understand another point mentioned by Tosafot and cited by the Rema (363:6): The exemption in the case of zeh neheneh v’zeh lo hasser – a benefit to one without a loss to the other – applies only when the person lived in the house without the owner’s knowledge. But if he asked the owner first whether he gave him permission to stay there and the owner refused, then if he does so anyway, he must pay. Now, if the basis for the exemption in this case is that no damage was caused, then the same should be true in this case as well, and he should not have to pay. But if the explanation is because there is a benefit that one should pay for, only that we impose the principle of Kofin ‘Al Middat Sedom, and don’t make him pay, then this Halacha is logical: We only apply the rule of Kofin ‘Al Middat Sedom after the fact, but if the owner does not give permission before the person lives in his house, and he has a good reason why he does not want to allow him to do so, then we can invoke the obligation to pay for the benefit that was received.
Based on this analysis of the sources relating to this Sugya, we can now return to our original question concerning using another’s wireless internet connection. It would seem that we can divide the question into two:
A) If the person requests permission beforehand
B) If he didn’t request permission beforehand
In case A, if the one with the connection refuses to allow the other to use it because it might slow him down, then this would be similar to the case in Tosafot and the Rema, where the person benefiting must pay the full value of the benefit, which would be equivalent of the price for the internet connection. According to our understanding, we would not apply Kofin ‘Al Middat Sedom since he has a valid reason for not wanting his neighbor to use the connection, as it might slow down his usage of the internet.
In case B, where he didn’t ask permission beforehand, then it may depend on the question of whether a loss of any type was incurred. If the internet was being used at a time when clearly the one with the connection was not using it, and therefore he was not inconvenienced in any way, then we should apply the standard rules of zeh neheneh v’zeh lo hasser, and he would not have to pay for the use. But if the wireless was being used at a time that the owner may be using it also, it may be considered a case of zeh neheneh v’zeh hasser, since the neighbor’s usage may slow down the use of the one who owns the connection (e.g., he is downloading large files or apps). Therefore, one would have to pay for the usage.
The amount required to pay though may depend on which explanation for zeh neheneh v’zeh lo hasser we adopt: According to explanation A, that the damage is the determining factor, then he need only pay a small amount, since the damage caused was only that it took a few minutes more to complete whatever tasks he wished to perform using the internet moving more slowly. This, in effect, may boil down to paying the difference between the cost of a fast-speed internet vs. a slow-speed internet. According to explanation B that the obligation is based on the benefit, only that if there is no loss there is an exemption on the basis of Kofin ‘Al Middat Sedom, then it would seem that when there is a loss (such as the internet slowing down), one should pay the full value of the benefit he received, which would be the full price of purchasing a wireless connection.