Is Jailbreaking a Smartphone Legal?

Is Jailbreaking a Smartphone Legal?

by Michelle Kaminsky, Esq., February 2009

Of the 10 million iPhone users in America, the Electronic Frontier Foundation (EFF) estimates that about 350,000 have hacked into their smartphones to install third-party applications not sanctioned by the manufacturer, such as video recorders and advanced digital camera settings.

Is this process, called "jailbreaking," legal?

Lack of Jailbreaking Lawsuits

Smartphone manufacturers haven't filed any lawsuits against individuals who have hacked their phones or against those who develop the third-party applications, but some cell phone carriers have threatened legal action against consumers who jailbreak their phones, possibly alleging breach of contractual provisions because of the use of certain applications.

That said, the process of jailbreaking your own smartphone doesn't appear to be illegal in and of itself as you do own the phone and its software under the licensing agreement. The EFF, though, wants the law made clear that there is no copyright violation involved, so it is turning to the US Copyright Office for help.

DMCA Exemption Request

The EFF, a digital rights defense organization, has filed a request for an exemption to the anti-circumvention clause of the Digital Millennium Copyright Act (DMCA) with the US Copyright Office that would specifically declare that hacking a smartphone entails no copyright violation.

Although the proposed exemption would cover all smartphones, the EFF focuses its arguments on Apple's iPhone, the "best selling mobile handset in the United States."

Currently, iPhone users can download applications approved by the Apple Store, but third-party produced applications can be added to the iPhone only after the jailbreaking process, which gives users access to the main Unix file system and allows them to make changes, including adding applications not approved or sold by Apple.

The EFF argues that this restriction limits competition, consumer choice, and innovation and is merely a business decision as opposed to any concern over copyright violation. Indeed, says the EFF, jailbreaking can be achieved without "exceeding the scope of authorization" the phone owner is granted at the time of purchase, and even if it cannot, such hacking is still permitted under the law as acceptable or fair use by the owner of the software.

Moreover, says the EFF, jailbreaking doesn't damage Apple and may even provide some benefit to the multibillion dollar company, making its iPhone even more attractive to consumers who want their smartphones to do more than is offered by Apple-sanctioned applications.

Public comments on the EFF exemption request are open until February 2, 2009; the Copyright Office will hold hearings throughout the spring and a decision will be announced in October. If the exemption is approved, it will have to be revisited in three years for renewal, as are all exemptions.

A Final Note on Jailbreaking

Although jailbreaking your smartphone probably won't land you in jail, do be aware that it will void your warranty with the manufacturer, so hack carefully.

Also be sure to read the contract with your cell phone carrier carefully to make sure that any applications you're running don't violate its terms; be especially careful if you're using your phone as a modem, which may not be covered in your contract.

More info:

Apple Responds to EFF: Jailbreaking a Smartphone is Illegal