Apple is currently embroiled in a legal tussle with the US Department of Justice over a defendant’s iPhone. The DoJ wants to force Apple to unlock the phone, but Apple argues that first, it technically cannot do so, and second, that it doesn’t have to. It’s that second point the DoJ is trying to address in a very interesting way.
Effectively, the DoJ is arguing that because Apple only licenses iOS to its users, and because Apple specifically states it retains ownership of iOS, Apple can be forced to unlock the phone. It is, namely, the DoJ argues, iOS which is thwarting law enforcement’s ability to do its job, and the copy of iOS on the phone in question is, as Apple itself clearly states, Apple’s property. Or, in the DoJ’s legalese:
Apple designed, manufactured, and sold the Target Phone that is the subject of the search warrant. But that is only the beginning of Apple’s relationship to the phone and to this matter. Apple wrote and owns the software that runs the phone, and this software is thwarting the execution of the warrant. Apple’s software licensing agreement specifies that iOS 7 software is “licensed, not sold” and that users are merely granted “a limited non-exclusive license to use the iOS Software.” […] Apple cannot reap the legal benefits of licensing its software in this manner and then later disclaim any ownership or obligation to assist law enforcement when that same software plays a critical role in thwarting execution of a search warrant.
This is a remarkable argument, and it fascinates me to no end – if the DoJ actually manages to pull this one off, it will not only be a glorious case of the insane anti-consumer implications of commercial software licensing coming to bite a large corporation in the ass, but it will also have far-reaching consequences for the power the US government has – in a very, very bad way, as Cory Doctorow explains:
To my knowledge, this is an entirely novel argument, but as I say, it has far-reaching consequences. Virtually every commercial software vendor licenses its products, rather than selling them. If the DoJ establishes the precedent that a product’s continued ownership interest in a product after it is sold obliges the company to act as agents of the state, this could ripple out to cars and pacemakers, voting machines and tea-kettles, thermostats and CCTVs and door locks and every other device with embedded software.
Commercial software licensing is a shady practice that should’ve come under intense scrutiny decades ago, but this is not the manner in which I want it to be done.