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Apple May Be Breaking the Law With Policy On iPhone Unlocks
an anonymous reader writes "Apple's recent decision to void warranties for folks that unlocked their iPhones may wind them up in legal hot water. The site Phone News points out that Apple appears to have broken a key warranty law relevant to SIM unlocks. The Magnuson-Moss Warranty Act, a law decades old, would seem to prevent Apple from voiding warranties in the way it is threatening to do with the iPhone, or so the site argues. 'The Magnuson-Moss Warranty Act states that Apple cannot void a warranty for a product with third-party enhancements or modifications to their product. The only exception to this rule is if Apple can determine that the modification or enhancement is responsible [for] damaging the product in question ... The legal [questions are]: Is the SIM Unlock process that has become mainstream doing damage to iPhone? And, also, is Apple designing future software updates to do damage to iPhone when said SIM Unlock code is present?'"
It's not about unlocking phones.
It's about the radio firmware being altered in an unknown way, or even damaged. (Note: this is DIFFERENT from jailbreaking, OS hacking, and installing third party apps.)
Why should that be covered under warranty?
[...] is Apple designing future software updates to do damage to iPhone when said SIM Unlock code is present?
NO!
Absolutely not.
Apple has already explicitly stated that they are not going to intentionally or proactively do anything to unlocked phones. Even a small amount of logic would reveal that when the baseband radio firmware is in an unknown state (this is different from the OS on the phone, and doing the "hacking" to install third party applications, and so on), future updates, either to the firmware or the OS or both, may break things. Even a software update that expects the radio to accept commands or interact with the OS in a particular way could end up breaking things.
Oh, I know a lot of you really want to believe Apple is actually going to intentionally damage phones that are unlocked. Sorry to disappoint, but that is simply not the case.
If there is any legal issue that erupts over this, Apple will very easily be able to prove that there is no way for it to predict the state of the hardware when it does updates when it has been altered, perhaps irreparably depending on the method, in an unknown fashion by the user.
Further, I think it's funny that some seem to carp about how Apple will be "fixing" the mechanism via which phones are currently unlocked, as if it's evil. Of course they will! It's a general buffer overflow that happens to be used in the unlock process. Should Apple not fix an exploitable buffer overflow in the OS just so people can continue to unlock phones? The arguments on this topic are laughable.
Moreover, while end-user unlocking of handsets is legal in the US under the current DMCA exemption, the vendor is under NO OBLIGATION to support the phones in such a state with future software/firmware updates. I can hear all the "But what about the UK?" people chiming in now. Apple will do whatever is required by law in any jurisdiction. If a certain jurisdiction REQUIRES unlocked phones, Apple may skip that market entirely (for now). Even in the UK it isn't as clear as some people like to think it is, because the phone technically isn't subsidized, meaning that it may not have to be unlocked after the subsidy is repaid - because there is no subsidy. And a large part of Apple's iPhone strategy with carriers is tight integration for things like the activation process: things that simply aren't supported with anyone but the partner carrier.
Remember: it's "legal" to do a lot of things which also might end up voiding the warranty of a particular product. Something being "legal" doesn't imply all of these things people seem to think it does. A lot of odd arguments appeared in the last story about this, saying that since the DMCA exemption allows handset unlocking, somehow, Apple must actively enable it. Wrong.
Customers have a choice:
- Don't ever apply a software update after unlocking (unless applying said update to a phone unlocked using your exact mechanism has been confirmed to work by others), and your phone will stay unlocked
- Don't buy an iPhone
Don't act like Apple is somehow bound to support all unlocked phones via any mechanism, some which may damage the phone, in any and all future software updates, especially when it can't possibly predict all iterations. You don't have to buy an iPhone.
And if you want to argue about simlocking in general, it's a very common practice the world over, and your beef isn't with Apple. If Apple just sold all iPhones unlocked, like some people think they should, there would be nowhere near the tight integration with any and all carriers, the pleasant do-it-yourself activation process that is part of what makes the iPhone genius, not to mention the economic arguments, where
...from a few days ago is a better lithmus test for this act, don't you think?
All the people posting here that, somehow, the warranty defines your rights or a manufacturer's responsibilities are absolutely 100% wrong.
Federal, state, and local statutes trump warranties every time.
If Apple knew, or should have known, that its firmware will destroy an iPhone regardless of after market modification, it *MUST* exercise care to prevent this from happening.
Any defense of Apple that does not account for law or relevant legal precedent are, at best, flawed.
It's not illegal to unlock a phone because of an excemption in the DMCA, but the DMCA says nothing about requiring warranties remain invalid. If this law were used to force Apple into maintaining warranties on unlocked iPhones, then wouldn't Microsoft be also obliged to maintain warranties on 'chipped Xbox's. Right now they're merely banning them from Xbox live, but shouldn't the inability to get online with a product which heralds its online capabilities be a warranty issue?
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iPhones can probably play the same crap. As long as they warn you that 3rd party software or hardware may brick the system, they're fine. Nintendo just did that with Metroid Prime 3. There is a warning saying that upgrading the firmware will most likely brick machines with mods, and even gave instructions on how to circumvent the installation. You couldn't play the game, but at least you don't have a brick.
This sig isn't original enough, it's time to come up with something witty...
Who said it's mainstream? I know of no one that has actualy unlocked their iphone.
Why should apple care? Doesn't unlocking a phone only take customers away from the carrier? Apple already got the profit from the phone when it was purchased, who gives a shit if someone wants to use it on a different network. If anyone should be pissed, it's Cingular/ATT. Also, this practice of voiding warranties for "hacking phones" is not new. I've hacked my Verizon Razr V3c because it just works way better with the hacks (all it does it enable features that are normally disabled, I dont change the software) and guess what, that voids the warranty with Verizon, but not with my phone insurance company.
This entire problem occurred because Apple partnered with AT&T. It was a sink-the-company idea for Apple, in my opinion, guaranteed to get Apple some VERY bad press.
People have a legitimate need to use other SIM cards in their phones. For example, if you travel to Europe or Asia or South America, it is common to buy a SIM card there (GSM phones only) because then you get a local number, making it much cheaper for local people to call you and for you to call them.
Locking the iPhone while charging the full price for it was an attempt to squeeze more money from buyers, most of whom don't fully understand all the ways cellular phone companies, and now Apple, can abuse them, in my opinion.
AT&T is no longer the old AT&T, because the name was sold to SBC. My understanding is that the SBC trademark was worse than useless because the company is so abusive. So, the managers decided to use another name. Those interested in how that happened can watch Stephen Colbert explain in a 1 minute 14 second video: The New AT&T.
SBC taking the name AT&T is, in my opinion, a kind of legal fraud, but fraud nevertheless. People are bound to be confused and misled. AT&T had a very good reputation. SBC-AT&T is a completely different company, and has no connection in its culture with the old AT&T. At the very least, the SEC should require the company to disclose in the first sentence of any prospectus for its stock that there is no connection whatsoever.
I don't know if you've written any software yourself, but the first rule about deploying patches to consumer software is that you are NOT allowed to make any assumptions about the state of the hardware or software.
The reason people are up in arms is because apple has raised the possibility of this update permanently bricking your iPhone. That possibility is unacceptable. Any decent programmer would just have the update checksum the software and firmware and overwrite any hacked copies with the new version. None of your arguments about altered radio firmware and so on have any bearing on the issue...what does it matter which piece of firmware we're talking about? If an update requires consistency on the part of other elements of the phone, it needs to ensure that they are consistent, and if they are not, either fix them or fail gracefully.
The bottom line is that there is a lot of precedent for hardware warranties being unaffected by the actions a consumer takes with his software. Any manufacturer who causes users 4-600$ dollars worth of hardware loss via a software update would be liable. End of story.
Believe me, if PC manufacturers could have voided your warranty for installing a different operating system (as they would be able to according to your arguments), they would have years ago.
You are plugging a radio device into a regulated liscenced network. You have a responsibility not to screw with the emissions of the device or misuse it. More than a responsibily--a legal obligation. But Apple also has a responsibility to try to prevent misuse of the device since it can't be expected that every user knows what they are doing and can weigh the ramifications of software installation. They need to make it reasonably safe but beyond that it's the end user that commits the crime.
It's also remotely plausible software can ruin the device and even increase the risk of fire. So making it hard to mess with also makes sense from that perspective. This is much more of a minor concern than the former, as there are already many perfectly safe battery operated computers. The reason it matters here at all is simply the numbers game. Unlike most moddable handhelds, theres millions of these things and they are very likely to be operated on airplanes and public transportation. Some prudence is required.
But beyond apples need to due dilligence above they also have the desire to make the thing have some value to the carriers and to the music sellers. Thus locking them helps the carriers. If there's a kickback for sales then it lessens the initial purchase cost to the consumers too. And it makes a market for DRMd music. (people who whine about fairlplay can't be pleased--it's a freakin fair-use speedbump folks, not a lock in. At least for the music. Video is a different story.). People may not like DRM but the mass consumer likes having a marketplace so they want to make that possible. To do that they need to enhance the sales value to attract the sellers. Personally I'm pretty happy with the line apple walks between buyers and sellers interests on audio sales. You can disagree with me on the DRM, but please see the point that apple has its reasons for needing to keep the device secure given its middleman position in the market.
Finally, my guess is that like their video DRM (as opposed to audio) they are not trying to win the cat and mouse game here but simply perpetuate it at a level where the rodent population is tolerable. hardcore folks will play update games. Everyone else will not.
So sure there may be sim card laws that say they can't prevent that. But they can prevent people from unlocking many of the other parts of the phone which may amount to the same thing, indirectly.
Some drink at the fountain of knowledge. Others just gargle.
You can hack your Tivo, and there has been some (backhanded) help from Tivo insiders to do so. You can make it do all sorts of wonderful things that Tivo did not intend, or were to litigation averse to embed in the system. Thing is, when Tivo updates the boxes you lose all your hacks. The community realized this and created a workaround that prevented automatic updates. Then they get the new software update, sifted through it, and either provided new hacks or a customized update to work with existing hacks.
I don't own an iPhone - I have a cingy 8525. I have flashed it to a not-quite-released WM6 firmware. If I want the latest and greatest approved stuff from AT&T, I need to load their software (though it does not appear to affect my unlock status...but it could). If I don't want the updated goodness, I don't update. My DTivo is about 3-4 minor updates behind, and before the last update I was a major upgrade behind. I'm not willing to lose my TiVo hacks for a couple bells and whistles (proper DST...which could be an issue coming up here...and folders).
If the firmware upgrades are "forced", those with hacked phones need to either code a workaround to avoid the updates or just suck it up.
Is it just my observation, or are there way too many stupid people in the world?
The author is no doubt referring to 15 USC 2302(c): "No [company] may condition [a] ... warranty ... on the consumer's using ... an[] article or service ... which is identified by brand ... or corporate name; except ... if the [company can show] that the warranted product will function properly only if the ... service ... is used in connection with the warranted product."
What this literally means is that Apple's warranty cannot say "This warranty is void if you use the iPhone with a company other than AT&T." However, Apple's warranty doesn't say that. It says that the warranty is void if you mess with the firmware. It HAPPENS TO BE that the only way to make it POSSIBLE to use another company's service requires doing something else that will void your warranty, but the warranty terms themselves aren't anti-competitive, the firmware is.
Even if the terms of the warranty did say this, Apple is probably still safe because it wouldn't be hard to argue that the iPhone isn't "function[ing] properly" if Visual Voicemail is broken.
Any case brought under this law would be without merit and would probably be dismissed for failure to state a claim.
Most of the "they can't do X" crap, stems from a misinterpretation of one specific part of the act:
The clause is to prevent, say, a vacuum cleaner company from requiring used of their own brand of bags (unless they provide them free). It doesn't mean you can modify your car for more horsepower, and expect the manufacturer to cover the engine under warranty when it breaks. It also doesn't mean a manufacturer can't put a clause in the warranty which says the car's warranty is voided if you hang fuzzy dice from the mirror. It means that they can't put a clause which says "Use of any brand fuzzy dice other than ACME brand fuzzy dice will void the engine warranty."
Specific to the case at hand, since Apple provides firmware "without charge" during the warranty period, Magnuson-Moss does not require that they allow third party or modified firmware to be used under the warranty terms, and Apple is within the law if they require that only their firmware be used to maintain a valid warranty.
"National Security is the chief cause of national insecurity." - Celine's First Law
...like the printer instruction books that warn you that third-party ink cartridges may damage your machine.
It could even be just what Apple says: they've found that there really is an innocent, unintended incompatibility between their updates and the hack. Certainly, there are perennial conflicts between Apple OS updates and software tweaks like Unsanity's "Haxies," and I don't think Apple is doing it deliberately.
I think Apple is using scare tactics, both to keep AT&T happy and to keep them out of the nightmare scenario of being forced to provide support for hacked iPhones.
I could be wrong, of course, but I'm curious to wait and see whether iPhones actually do get bricked... and whether a smoking-gun memo will emerge--"The job's not complete 'till unlocked phones are dead meat"
"How to Do Nothing," kids activities, back in print!
Ok, if you buy a brand new car with a warranty, and you then perform a bunch of aftermarket mods to it, including modifying the computer, should the manufacturer support it? No. You performed modification to a device which is meant to function in a specific way. You assume whenever you hack something you're voiding your warranty. There are books entitled, "How to have fun while voiding your warranty" about hardware hacks. You're just pissed because you bought a 500$ device, and now you face bricking it because you rushed out of the gate to mod it. You have implemented things from a 3rd party, not apple. Why should apple support things that aren't theirs? It is no longer the device they sold you. Turn to the 3rd party hack vendors to update. Seriously, you can't have the best of both worlds. Get the hell over it. The most important thing is that apple informed you. Imagine if they released the update and said nothing? At least now you can continue using your iphone as is. So really, you haven't lost anything.
I read through some of the information on this Magnuson-Moss Warranty Act and it seems that the purpose here was to ensure that manufacturers provided the consumer with a document that is both easy to understand, and not ambiguous. However, it does not put any stipulation on that manufacturer to prevent them from invalidating the warranty if you don't use the device correctly.
However, this act falls a little short in the realm of electronics and firmware. Sure, Apple can't go around saying that your warranty will be void if you use a Motorolla bluetooth headset instead of an Apple one. But, can they say that the warranty is void if you use a different firmware? It seems to me that there's a gray area there. Firmware is required to make the device work, but it's provided by the manufacturer. So, can the manufacturer prevent you from using someone else's firmware by invalidating the warranty?
I suppose the underlying question is, what does the warranty cover? If it's merely electronics, then perhaps the manufacturer cannot dictate the firmware used, but, in the event of a failure, they can surely attempt to load the device with "official" firmware in an effort to determine the problem. Of course, if the unit is completely dead, that won't help. In that instance, the question becomes more of a "what caused the failure" type of question.
That's where 3rd party firmware can become a problem. How do you prove that the firmware was the cause and not the hardware? I'm sure it can be done, but to the satisfaction of the customer? And is it really Apple's responsibility to determine if the firmware was the cause? In the end, it may cost Apple quite a lot of money to make that determination, only to turn back to the customer and refuse the warranty claim. It's sort of a lose-lose situation.
XenoPhage
Technological Musings
Now if you'd like to bolster your claims to the contrary, why don't you actually post some relevant legal precedent for reference?
"Chevy won't fix the *engine*, but if the differential burns out they'll sure as hell fix that."
No they won't. The diff operation is changed by the different engine you installed, and will not be covered. Saying so doesn't change that, it just makes you wrong.
And the rest of your post is wrong too.
I only go to buffets for the unlimited soft serve.
Let's use your fuzzy dice example. What happens if an unlocked iPhone has a completely unrelated hardware failure, like the touchscreen or button? Apple would say the warranty is void, but the way I understand it, you can't void a warranty unless an unauthorized modification directly contributed to the failure.
While many might be hoping that there would be some kind of barrier to prevent Apple from deploying such a limitation, it is everything but illegal to do so. The writer of the original article, while providing persuasive evidence that there might have been a warranty violation breach, does not analyze the full letter of that law nor does any sort of comparison with Apple's own legal warranty claims.
If you take a look at the official Apple warranty for the iPhone, there are a couple of points in their exclusions that make clear that they are within legal bounds to do this: "...to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of Apple or an Apple Authorized Service Provider ("AASP")..." "(a) to damage caused by use with non-Apple products;..." "(e) to a product or part that has been modified to alter functionality or capability without the written permission of Apple"If these rules were illegal, they would have been contested before their publication, thus before the release of the device. Apple needs to have these rules in place so that they do not have to pay costs for repairing devices that were broken by people who bought phones to intentionally harm them by all sorts of means. The company made a deal with AT&T, and in that deal there was an implicit demand that the phones stay locked to only their service provider, hence making them an exclusive carrier. Altering this would alter the functionality of the phone against Apple's policy, thus proving a legal voiding of warranty.
We can even take this a step further. Even if Apple had no EULA and only went by the letter of the Magnuson-Moss law, the clause in defense only applies for full warranties, for which Apple's product comes only with a limited warranty. This makes a significant difference, as those provisions no longer apply. This is clearly stated in the Wikipedia article linked to this article.
While I do not defend this decision entirely, it is obvious that if you are a user of an unlocked iPhone, and the firmware update only serves to remedy this "flaw," then the solution is easily to avoid the upgrade. There are no new features or enhancements being introduced in this update, so why is this even a concern?
The original post raises a number of questions, not least how the author managed to type in so much text and still be first post. Perhaps he is a subscriber.
There are many interesting questions here, not least being whether Apple does have an interest in locking the phone, it is AT&T that bears the loss. Only Apple is getting paid some form of bounty for each phone from AT&T in return for the exclusive status. This looks and smells to me like a subsidy and I will bet it would to a UK judge as well.
If this was Microsoft we were talking about there would be nobody defending the lock in strategy. OK, almost nobody since there are always some trolls.
Europe has decided as a matter of public policy that customers have the right to use their phone on any carrier they choose. Apple's marketing plans are irrelevant to them. If Steve Jobs does not want to play according to the rules they set there will be no iPhones in Europe as in none, zip, zero, nada, nyett, non-parle-iPhone.
Europe has come to a similar decision about DVD players, you can readily obtain unlocked DVD players in every part of Europe. The EU decided that the movie studios were using the zone system to enforce differential pricing. The RSS consortium has decided to ignore the fact that the manufacturers offering unlocked players are technically in breach of their agreement. They know that they would quite likely lose their patent rights entirely and suffer significant fines if they were to attempt to do so.
Public policy trumps Steve Jobs and any exclusive contracts he might sign. It is as simple as that. Wearing a black turtleneck does not provide immunity from the EU anti-trust laws.
Looking for an Information Security student project suggestion?
Try http://dotcrimeManifesto.com/
Obviously the kind that realises that just because they may be wrong about one thing, doesn't mean that everything else they say is wrong because of it.
In regard to your whinging about the troll mod, let me say that troll mods have nothing to do with truth, or logic. If you put your opinion in an inflammatory or obstructive way, no matter how logical or truthful you may think it is, you run the risk of legitimately getting a troll mod. That last "and the rest of your comment was wrong" line was especially obstructive. How are you meant to discuss the topics at hand if everyone just said "you are completely wrong" and provided little to no evidence why.
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.
I'm confused. Apple's iPhone warranty clearly states:
... unauthorized modification
> Limitations| The Plan does not cover:
Clearly unlocking a phone is unauthorized modification. There are laws that enable individuals to unlock their own cell phones, but these laws do not require the OEM to honor the warranties on the equipment. Unlocking a phone is something you do at your own risk.
Since the warranty is clear, I don't think Magnuson-Moss applies...
As for firmware that causes damage to unlocked phones, I think Apple would be overstepping it's bounds. There are other ways to skin that cat. A simpler, less volitile solution would be for Apple to patent a custom SIM package and the iPhone would only work with SIM cards that Apple produced.