Can apartment dwellers, share the use of a wireless connection of one of the neighbors, assuming the owner does not mind? What about if the owner is asleep or out of town — would this be a case of zeh neheneh vzeh lo chaser where there absolutely no loss whatsoever from the owner. Would this not be a case of kofin al midas sdom?
I would like to ask three questions in this connection:
1) Do I need to ask?
2) Is it mutar lechatchilah?
3) Even if he says no, in the case of being out of town or asleep, is it allowed anyway since this in no way impedes on his baalus (sevara of Pischei Teshuvah would therefore not apply).
If nothing is said by the neighbor, it is certainly permitted to use his wireless connection. Anybody who has an unsecured wireless connection knows that neighbors or passers-by will be able to utilize it, and their leaving the connection unsecured implies a tacit granting of permission for doing so.
Even if he states that you may not use the wireless connection, there is room to argue that he does not have the right to prohibit its use. As you rightly point out, if he is away or asleep, so that others’ use of the connection causes him no loss (in the speed of his own internet surfing), it is a case of zeh neheneh vezeh lo chaser.
Although Shulchan Aruch (Choshen Mishpat 363:6) rules that a person has the right to forbit others from taking benefit from his property, Rema writes that this applies only to cases in which the owner has some way of deriving benefit or income from his property. Somebody who is sleeping or out of town has no way of deriving benefit from his internet connection, and according to Rema, he would therefore not be within his rights to prohibit its use. According to noda Biyhuda (tinyana 24), Shulchan Aruch does not concur with this ruling, however, in cases for which others’ use in no way violates the ownership of the owner (unlike living in somebody else’s house, which violates his ownership), it is possible that all agree that the owner cannot prevent others from benefiting (see Rav Shimon Shkop, Bava Kama no. 19).
The rationale above applies for times in which the owner is not using the internet, and therefore loses nothing from others’ use of the connection. However, there is room to argue that the owner cannot prevent others from using the connection at any time. The reasoning for this is that a person cannot place his painting on the street, and forbid people from looking at it, thereby forcing all pedestrians to cross the road. A person’s self-made prohibitions cannot force others to take positive action to avoid ‘transgressing’ the prohibition.
[This idea fits well with the Talmudic principle statiing that there is no me’ilah concerning voice, appearance, and scent. The benefit derived from these intangibles concepts cannot be prohibited, so that a person can never cause others to take positive action to avoid transgressing.]
The same might possible be applicable to a wireless connection. A person can own his sterio system, but he cannot prohibit others from hearing the music that can be heard on the street. In a similar sense, although a person owns his router, he cannot prohibit others from benefiting from the wireless connection. [This might also fall under the category of kol, mareh, and re’ach.] By forbidding you to use his connection, the neighbor is effectively forcing you to turn of the internet function on your computer, or to turn off the automatic detection function that finds wireless connection. It can be argued that this is not within his rights. Once you are connected, it can further be argued that he cannot prevent your from using the connection to surf or to download from the internet.
The argument is strengthened by the fact that if he wishes to, the neighbor is able to secure his connection, and prevent others from using it. However, the final argument (permitting use of his connection even against hthe owner’s wishes, at all times) still requires further scrutiny.