Bricking someone else’s iPhone is a crime
Suppose, accurately, that I am a small software developer. Suppose I write a shareware application that includes a click-through license that states, ordinarily enough, that if you wish to use my application for longer than a 15-day trial, you must pay me. Suppose, ordinarily enough, my application periodically checks for updates, notifying users and offering to install the updates when they become available.
Now suppose that in the click-through installation process, I include a message, in bold text even, that says “Warning: If you’ve been using this application for longer than the 15-day trial period and have not entered a license key, installing this update may cause your hard drive to be erased!” And, suppose the update does just that.
I would be in jail. Not in a month, or a week, but yesterday. What I’d done would be considered equivalent to distributing a malicious virus. The click-through “authorization” wouldn’t be worth the electrons they were written on. In the computer crime world, “social engineering” — getting people to let one into a system to do bad things, rather than breaking in by technical means — is the norm, and it is illegal. When an e-mail virus begs you to run a malicious attachment, it is not the virus that kills your computer, but you, by double-clicking. After all, you ought to have known better, right? We still put the pimply teenager or smoky mafia don who sent the thing in jail, if we can find him. If there were a click-through warning, just prior to the swiss-cheesing of your computer, disclaiming liability and saying the program “may be harmful”? We’d still put the perp in jail.
Now if Apple has done what they appear to have done — if they have broken other people’s palmtop computers permanently as payback for having violated the terms of a license agreement — they have committed a crime. Sure, Apple made those iPhones, and they forced people to sign up to certain terms before selling them. But once they were sold, they were other peoples’ property. And whatever remedies Apple may have had against customers who violated the non-negotiable contracts they signed onto when purchasing the phone, those remedies did not include destruction of customer property without any adjudication by an impartial arbitrator. A click-through warning of the type every computer user, um, clicks through hundreds of time a year does not affect the criminality of Apple’s action.
If it was, in fact, a technical necessity that resolving customer issues on the iPhone required doing things that would break unlocked or modified iPhones, that would be a different situation. Apple would not be off the hook, but it would have some toothpicks to stand on. But I think that’s unlikely. At the very least, Apple’s update could have checked for incompatible changes to the iPhone and refreshed to initial state prior to applying the update. Apple didn’t brick people’s iPhones because it couldn’t help it. It bricked people’s iPhones because Apple is playing a “cat and mouse” game with customers who “think different”, who like to play with the gadgets they buy. (“Bricolage“ is an especially apt term here.) Apple decided to play hard, and dropped the digital equivalent of a horse’s head on the beds of first-adopters who dared cross them, in order to deter future customers from using their device in a manner other than that prescribed for them.
This is criminal behavior, regardless of any violation of license terms by the victims of the crime. It’s illegal for Muscles to come by and cut your thumb off, even if you really do owe Da Boss some money. It’s illegal for Apple to gain entrance to your property under the pretense of improving it and then purposefully wreck the place because it found you were doing something you said you wouldn’t do there. A boldface sentence in a click-through agreement doesn’t change that.
I should say, this is not a personal gripe. I don’t own an iPhone, or an iBrick. (I did just buy an iPhone for my sister, but she’s unlikely to do anything with it that Uncle Steve would disapprove of.) I have been a rabidly enthusiastic consumer of Apple products since my parents bought the family an Apple ][+ in 1980. Just within my immediate family, there are at least 9 Mac laptops, largely as a result of my love of the platform and enthiusiasm for Apple’s products. Jobs and Woz have been heroes of mine since I was a kid. I know Steve Jobs is a tyrant. I even support that, when it comes to product development, running his company. Jobs can fire whoever he wants for not conforming to his remarkable vision of how Apple products ought to be. But he cannot purposefully destroy my stuff for the same offense.
I hope Apple is not simply sued, but prosecuted under criminal statutes for what they’ve done. Anything less means that big corporations live under different laws than pimply teenagers and small software developers.
It is getting so hard to find the good guys these days.
- 01-Oct-2007, 1:50 a.m. EDT: Dropped the word “electronic”, which was redundant with “digital” in the context of a horse’s head. Respelled “heros”. Changed “impartial third party” to “impartial arbitrator”. Redundancy is redundant.
- 01-Oct-2007, 4:00 a.m. EDT: Replaced a vague “their” with “Apple’s”. Replaced one repeated use of the word “warning” with “message”. Removed some wordiness (“of the violation”).
Here’s the thing. iPhone users bought the phones, but they *licensed* the software that’s running on them. This kind of thing *does* happen all the time and not just in computers. If, for example, I buy an upgrade to my automobile that makes it impossible for the dealer to service it anymore, and that upgrade breaks, well, I am out of luck.
But no, you say, the dealer doesn’t come out and *break* my car. They don’t because you’re not still buying anything from the dealer, ie. a phone service. If the change you made meant that you could run on salad oil, and you had a contract for gas for your car and putting that gas in the tank would make it into a brick, well, you’d be in the iPhone camp.
I don’t like this much either, but I do think it’s not unreasonable for apple to maintain their un-hacked iPhones, even at the potential damage of the hacked ones. I guess you shouldn’t hack them….
October 1st, 2007 at 11:47 am PDT
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rjz — I’d be one-hundred percent with you if Apple’s updater just refused to run on hacked phones. It’d be trivial for the updater to detect, and its normal practice in distributing public software to do sanity checks in the spirit of “first, do no harm”. Usually Apple in particular is very good at this — nearly all of their software updates run various checks, and will “grey out” destinations for which an update would be inappropriate.
A software company that distributes an update that fails to do sanity checks on its destination, such that erroneous installation (performed conveniently, without users hacking or overriding a refusal) could be anticipated to harm to a user’s computer is doing shoddy work, and is arguably negligent. But a software company that has anticipated such an update would do harm, and distributes a convenient update without sanity checks in order to do harm to alleged violators of a license agreement is engaged in illegal vigilanteism.
Users never contracted to install all Apple updates. If users have rejigged their car for salad oil, and that is obvious, Apple should not have put in the gas. Apple would have been within its rights to flag a violation of licensing terms, and refuse future warranty support, even undertake stronger legal remedies if it (counterproductively) chose to. But Apple was not within its rights to pour in the gas, and then say, “whoops, sorry, your bad!”
Users bought the phone and licensed the software, that much is true. The boundaries of what users can legally do with their phones and that software are blurry, whatever the click-through, shrink-wrap licensing might say. It is legal, in general, to unlock a cellphone, regardless of any terms to the contrary in the fine print. What part of a non-negotiable license is enforceable, what constitutes fair use by the purchaser of an expensive device, are legally challenging questions.
Apple didn’t want to deal with that. So, they intentionally failed to protect users who didn’t behave as they wanted, and disclaimed all responsibility when other people’s property was rendered inoperable. That’s unconscionable, and criminal.
Again, all Apple had to do was refuse to install on modified iPhones (or offer to install only after a refresh). They could have left iPhone hackers in the dust, as far as support. They could even, if they wanted to deal with the bad press, warn in boldface that the updater would report modded iPhones to Apple, resulting in loss of warranty support and potential legal action, and follow through on that.
But they were not in the right to knowingly, and according to their spokespeople permanently, destroy other peoples’ property. Period. (Note: Word on the street is that hackers are making headway in unbrickifying the dead. I was relying on what Apple itself has said in the blog post, that the phones were actually, permanently dead.)
October 1st, 2007 at 2:19 pm PDT
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I do agree with what steve has to say but apparently they did warn people that this patch could cause a problem with hacked phones so they did warn people that it could happen to the hacked phones so people who did upgrade their phone should have believed that it would do that and not upgrade their phone. So in some ways you can’t blame apple for what happen to the iphone when they upgraded the firmware on the phone they made the choice and it caused them problems. So people should blame themselves for not believing in what apple warned about the new patch.
October 1st, 2007 at 4:50 pm PDT
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How is it possible that in a country with a Constitution and a Bill of Rights, there are people who’ve decided that only corporations have rights? Or are those commenters who say that EULAs can demand anything at all — are they all corporate plants?
I’m shocked that Steve has to re-argue his point that BRICKING SOMEONE ELSE’S EQUIPMENT IS A CRIME.
As for the license BS, could we get our heads straight on that? The idea of licensing software comes from the Paleolithic. Software ran on mainframes, and with so much difficulty that it required its own geek babysitter. A program cost $10,000 a year, and if there was a problem, a programmer fronted up to take care of it.
That’s the essence of licensing. The company continues to own AND TAKE CARE OF the product. Except that software companies decided that just keep the first part, and hand all the “taking care” to someone else.
You know what? It doesn’t matter if they call it “licensing.” In plain English, that’s called “buying.” And the consumer has all the rights of an owner.
(Steve’s right, of course, that in the current state of law they’ve made a total thicket out of this. But in simple language, that’s the principle of the situation.)
October 1st, 2007 at 6:28 pm PDT
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