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Jailbreak an iPhone: Will you end up in court?

Jailbreak an iPhone

Jailbreak an iPhone?

As technology becomes more sophisticated, hackers are responding with new and innovative ways to manipulate and control hardware and software. But does the law make it illegal to ‘jailbreak’ an iPhone or otherwise circumvent the security measures of the operating system of a mobile device or tablet?

What is ‘jailbreaking’?

The late CEO of Apple, Steve Jobs, had a vision to create a ‘closed eco-system’ that seamlessly integrates hardware and software. Jobs believed that giving Apple this high level of control would improve the end user’s experience and protect his users from viruses and other malicious code.

Today, Apple’s operating system for mobile devices (‘iOS’) is used in iPhones and iPads. iOS restricts a user’s ability to install independent software on the mobile device unless the software is approved by Apple and available on the Apple App Store. Hackers have devised ingenious mechanisms to modify iOS to remove these system restrictions and enable a user to directly access the file system. This unauthorised software modification, also known as “jailbreaking”, allows users to install non-Apple approved software on their iPhone and to customise their device.

On the other hand, Google’s Android mobile operating system is based on open-source software and generally does not implement protections or prevent users from modifying or replacing the operating system. In other words, unlike Apple devices, users are free to modify their Android devices.

Legal status in UK and NZ

UK law takes a practical approach. Under The Copyright and Related Rights Regulations 2003 a user can lawfully circumvent DRM protection measures for the purpose of interoperability. However, if the use extends to copyright infringement then this is a breach of the Regulations. To date, the issue of whether jailbreaking amounts to copyright infringement under the Regulations has not been tested.

In New Zealand the the Copyright Act 1994 (as amended by the Copyright (New Technologies) Amendment Act 2008) allows a user to circumvent of technological protection measures (TPM) but the circumvention has to be for legal and non-copyright-infringing purposes.

Legal status in the US

In the US, the Digital Millennium Copyright Act (DMCA) prohibits users from circumventing digital rights management and other technological measures used to protect copyrighted works. However, by virtue of a 2015 decision by the US Copyright Office jailbreaking of a mobile device and tablet is exempted.

Accordingly, the DMCA doesn’t apply to a user who jailbreaks an iPhone or iPad that they own. But it will apply to someone who distributes jailbreaking software code to others, especially for profit. Interestingly, although the DCMA exempts jailbreaking, the act of removing the SIM locking restrictions on a device is prohibited.

Legal status in Australia

It is currently not settled in Australian law as to whether it is illegal to jailbreak an iPhone. The Copyright Amendment Act 2006 prohibits a user from circumnavigating technological protection measures (TPM).  A possible consequence of this is that distributing tools and information to jailbreak an iPhone is illegal under the Copyright Act.

Apple’s TPM prevents the installation of non-Apple approved software and applications onto the iOS of the mobile device. Could Apple mount an argument that circumvention of the iOS for the purpose of users installing non-approved software and applications is a breach of the TPM provisions in the Copyright Act and therefore an infringement of Apple’s copyrighted works? The spirit of the Australian legislation appears to target those individuals and businesses who hack and circumvent TPM for profit, or sell tools to circumvent TPM. It is therefore likely that only individuals who have developed a TPM circumvention strategy for iPhones that they then sell for a profit would be in breach of the Act. And an individual end user who jailbreaks an iPhone or purchases jailbreaking software for their own personal use at home would not be in breach of the Act.

Apple’s non-legal remedies in Australia

Apple has its own remedies in response to a user jailbreaking an iPhone, On its website Apple states that “unauthorized modification of iOS is a violation of the iOS end-user software license agreement and because of this, Apple may deny service for an iPhone, iPad, or iPod touch that has installed any unauthorized software.” Unfortunately, Apple does not provide a definition of  ‘unauthorized modification’.

By refusing to repair or service an iPhone, Apple is excluding the compulsory consumer guarantees regime under the Australian Consumer Law (ACL). Presumably, Apple would reply on the exception in the consumer guarantees regime that manufacturers do not have to pay damages if goods do not meet the consumer guarantees due to an act, default, omission or representation made by some other person, for example the act of a user jailbreaking an iPhone. However, the Australian consumer regulator, the ACCC, has commented that if the jailbreaking/modification does not cause damage to the iPhone, the consumer will continue to have a right to warranty protection under the ACL if the device malfunctions.

Practical reasons not to jailbreak an iPhone

Apart from the legal consequences of jailbreaking an iPhone (or any iOS device), the act itself eliminates Apple’s built in operating system security that makes the device reliable, prevents viruses and protects a user’s personal information.

The software that performs the jailbreak is often from unknown or untrusted sources and jailbreaking may give hackers the means to steal a user’s personal information, damage the mobile device, attack the network used on the device, and introduce malware, spyware or viruses.

These reasons alone should be enough to deter Apple users from stepping outside of the Apple ‘eco-system’ and jailbreaking an iPhone, whether the actual act of jailbreaking is legal or not.

 

Photo credit: Pixabay

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