Why Apple Can't Stop iPhone Hackers

AT&T and Apple may face an uphill battle prosecuting hackers who untether the iPhone from the AT&T wireless network

by Olga Kharif

It sure sounds like a steal. On Aug. 31, George Hotz plans to trade in his iPhone for a metallic blue Nissan (NSANY) 350Z sports car and three brand-new iPhones. But the 17-year-old's device is no ordinary Apple phone. Hotz hacked his iPhone and unlocked it so that it can be used on a variety of cell-phone networks, becoming the first person known to have done so. The person buying Hotz's phone, Terry Daidone, believes he's the one getting the deal because Hotz has agreed to work for him at his cell-phone refurbishing company, CertiCell.

Daidone says he doesn't plan to sell unlocked iPhones just yet. Rather, he says that he wants Hotz to teach CertiCell's technicians the secrets to unlocking other kinds of cell phones. But that could change—if he can clear up legal questions surrounding the practice of unlocking mobile phones. "As the need arises to unlock phones, we should be at the forefront of that," Daidone says.

Apple (AAPL) and AT&T (T), the sole authorized supplier of the iPhone in the U.S., are doing what they can to make sure that legal clearance never comes. The two companies have put their lawyers on the case, applying pressure on hackers involved in unlocking iPhones to try to get them to stop. Much is at stake. AT&T has been hoping that as the exclusive provider of the iPhone, it will see a surge in new customers and monthly service charges of at least $60 from each one. Apple is supposed to get a cut of the revenues. If iPhones are unlocked, they can be used on the wireless networks of rivals like T-Mobile USA—and AT&T gets zippo. AT&T wouldn't comment for this story, while Apple didn't return a request for comment.

Fuzzy Laws

So will Apple and AT&T's legal action deter hackers? Hardly. Individual users are already allowed to unlock their own phones under an exemption to the Digital Millennium Copyright Act (DMCA) that the U.S. Copyright Office issued last November. The exemption, in force for three years, applies to "computer programs…that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network."

What's less clear is whether companies and hackers can legally unlock the phones and then sell them to others, or sell unlocking software. "The law here is unclear," says Jonathan Kramer, founder of Kramer Telecom Law Firm in Los Angeles. "There just isn't any case law in this area for us to figure out how it plays out."

Experts believe that AT&T and Apple will point to the DMCA's section 1201, stating that "no person shall circumvent a technological measure that effectively controls access to a work protected under this title." They will claim that a phone lock is just such a technological measure that protects copyrighted work: namely, cell-phone software.

Hackers Undeterred

Problem is, it could be argued that, in reality, the lock only protects access to a carrier's communications network—and communications services aren't copyrightable under the Act, explains Jane Ginsburg, professor of literary and artistic property law at Columbia Law School. "This law was written for DVDs and video games," she explains. "What's going on here is using the Copyright Act to achieve another objective."

Indeed, this time, hackers may have the law on their side. Remember, decades ago, automakers built their instrument panels so that only authorized radios of their own manufacture would fit in. Eventually, U.S. courts ended that practice.