@the door analogy

That is a weak analogy but still it should not be criminal to use unsecured wireless. Closest analogy I can imagine would be like being arrested for trespassing for taking a walk in a public park that is advertised as free to the public.

Now the use of a packet sniffer or brute force to hack in is definitely illegal and should be prosecuted.

We all have to remember these unsecured access points are screaming HEY I'M HERE USE ME I'M FREE HERES MY NUMBER to all the computers nearby and the computers are just taking them up on the offer.