“evasi0n” Tactics? How iPhone Users Get Out of Jail Free
In the midst of “evasi0n,” a new jailbreak for iOS 6 released Monday by a group known as “evad3rs,” one wonders how long jailbreaking will remain legal, especially in light of the fact that unlocking phones has entered a “legal gray area” last weekend.
“Jailbreaking” and “unlocking” are terms referring to different processes of hacking, of personal information theft.
Jailbreaking refers to a process that enables an iPhone to download otherwise prohibited, non-Apple, third party apps.
Unlocking refers to the process of freeing an iPhone from its carrier – allowing it to be serviced or used by any carrier.
According to Electronic Frontier Foundation Attorney Mitch Stoltz, unlocking an iPhone has entered a legal gray area – after an exemption created by the U.S. Copyright Office, and by the Library of Congress, expired on January 26, 2013.
Mr. Stoltz calls it a legal gray area because unlocking an iPhone isn’t necessarily illegal. “Wireless carriers aren’t worried about piracy’ of the software on their phones, they’re [more] worried about people reselling subsidized phones at a profit.”
Mr. Stoltz added: Carriers and prosecutors would go after businesses reselling unlocked phones before going after individuals.
“If a court rules in favor of the carriers, penalties can be stiff – up to $2,500 per unlocked phone in a civil suit – and $500,000 or five years in prison in a criminal case where the unlocking is done for commercial advantage. And this could happen even for phones that are no longer under contract.
“So we’re really not free to do as we want with devices that we own[?].”
A good, hard question. So, what happens to individuals that unlock their phones?
Brian X. Chen, writing for the New York Times, stated “It’s not like police officers will come knocking on your door if you decide to unlock your cellphone. More realistically, consumers might receive warnings from carriers if they are discovered to have unlocked a device.”
For now, jailbreaking will remain legal and will be protected by exemptions through 2015. But, why has jailbreaking been allowed to remain legal?
Librarian of Congress James Billlington decided jailbreaking would remain legal. He stated: The practice was “innocuous at worst, beneficial at best.”
Apple has argued that jailbreaking constitutes an infringement upon its operating system. Apple prohibits users from jailbreaking . . . but because the practice is legal, Apple is rather helpless in the matter.
The Copyright Office stated “Apple argued that because purchases of an iPhone are [for] licensees, not owners, of the computer programs contained on the iPhone … [and] the Copyright Act is inapplicable as an exemption to the adaptation right.”
However, PC Mag reported that Mr. Billington “acknowledged . . . the contract between Apple and its customers does not specifically authorize modification of the iPhone, but said that the contractual language is ‘unclear’ as to whether users are buying or licensing a copy of the computer program contained on the iPhone.”
Forbes Magazine also reported, that the jailbreak had been used 800,000 times in its first six hours live . . . and that by Tuesday, the jailbreak had been used an estimated 1.7 million times. Forbes even included a step-by-step walk through of how to jailbreak with one of evasi0n’s developers.
Could Apple’s muscle prevail in 2015 when exemptions for jailbreaking expire? Perhaps. Let’s say that Apple clarifies its Terms of Service to state that users are never buying an iOS, but are instead merely licensing it. If the Librarian of Congress decides that jailbreaking is a violation that breaks the licensing agreement, jailbreaking would then become punishable by law.
Jailbreaking, in this instance, would be considered “derivative work,” meaning aspects of the original iOS were illegally modified. Derivative work would be considered a criminal infringement if the jailbroken phone were used for commercial purposes.
However, it’s difficult to imagine how this would be possible, given that jailbreaking can be accomplished by anyone, decreasing the likelihood that anyone would purchase a jailbroken phone.
The “Hope” poster depicting then-Presidential hopeful Barack Obama is a fairly recent and famous instance of derivative work versus fair use.
Will this new jailbreak wave eventually induce a federal copyright crackdown similar to one that occurred with Android apps in October 2012? During that crackdown, which was the first of its kind, the FBI seized a number of sites accused of selling illegal copies of apps. What kinds of potential federal technology crimes will appear in the wake of the newest iOS jailbreak?
The depth of this rabbit hole is currently unforeseeable, but is very intriguing, especially given that jailbreaking is still legal. Federal prosecutors and federal defense attorneys alike will be watching the matter closely, waiting to see if jailbreaking may someday, ironically, lead to jail time.