[general_re]

Unless both the wardriver and you are continuously transferring large files, you're unlikely to notice any performance hit.

If I'm not home at the time, I'm unlikely to notice that you've come in and spent some time watching my TV - that doesn't make it okay to do, though.

But that's not quite right, either, because most of the music available on the internet is clearly stolen, whereas many of the "promiscuous" wireless ports are intended for use by the public, and there's no way to distinguish public from private.

Err on the side of caution, I suppose. The question is whether he reasonably believed that this WAP was intended to be freely available to the public. Opinions on that will vary, I imagine :)

[Physicist]

If I'm not home at the time, I'm unlikely to notice that you've come in and spent some time watching my TV - that doesn't make it okay to do, though.

Correct. Physically entering your home is clearly trespassing.

Now, let's suppose you are at home watching HBO, and someone is watching your big-screen TV from the public sidewalk, and listening to it blare through your bay window, is that OK? He knew he didn't have your permission. He doesn't pay the HBO subscription fee, through which the studio gets royalties. Is he a thief, a trespasser, a loiterer, or merely another libertarian swinging his fist past the tip of your nose?

I'm not trying to win points off you AndrewC-style; I think this really is a grey area, both legally and morally. I'm of two minds as to whether the perp deserves punishment for this.

[rwfromkansas]

The presumption should be on the side of public use.

There is simply no way to know if it is a public or private connection, and even if a private connection, if the user meant to lock it (I frankly wouldn't give a crap if somebody was using my connection just for normal web surfing unless they were there all day or downloading big files etc.).

[Arthalion]

The question is whether he reasonably believed that this WAP was intended to be freely available to the public

The decision to deregulate the entire 2.4 Ghz spectrum and open it to unfettered public use pretty much cements that position. Legally, in the United States, nobody "owns" ANY 2.4 Ghz radio signal...the fact that the signal is transferring computer packets rather than voice data is legally irrelevant. States can't even tighten restrictions on this subject because the Supreme Court has already ruled that governance of the radio spectrum is strictly a federal matter. So yes, the assumption IS that ALL 2.4Ghz communications are public property. The only way 2.4 Ghz network owners can dodge this is by encrypting the connection and designating it as "private". At that point, several other federal laws kick in that allow the prosecution of anyone who penetrates a private computer network...but you MUST do SOMETHING to first designate it as PRIVATE.