, 2007-09-04
I admit it: I own an iPhone. Indeed, I bought one the day they came out. No, I didn’t wait in line for hours; I just walked into the local Apple store, plunked down my life’s savings, and voila, another AT&T customer!
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?Whoever--knowingly and with intent to defraud uses, produces, traffics in, has control or custody of, or possesses a telecommunications instrument that has been modified or altered to obtain unauthorized use of telecommunications services;? (is guilty of committing a Federal Felony.)
The "intent to defraud" clause is key. Clearly, neither AT&T nor Apple "authorized" their branded "telecommunications instrument" to be "modified or altered to obtain unauthorized use of telecommunications services" to use a competing GSM carrier's network - as that would clearly deprive AT&T/Apple of revenue.
The AT&T/Apple business model hinges upon revenue generated by use of the iPhone on AT&T's wireless network, and sharing that revenue. If someone hacks an iPhone to use T-Mobile instead, that is depriving both AT&T and Apple of revenue.
Yes, the state is (deliberately) vague. But if you think the DOJ would not make such an argument, they have so before and there is existing case law. In US v Cummings (1995) the DOJ argued that mere possession of "hardware or software" (for reprogramming a cellphone as an extension of an existing cellular account, by the owner or with their consent) constitutes "intent to defraud" because is defrauds the wireless carrier of subscription revenue. Neither actual nor attempted fraud was alleged in that case, and the government even admitted in writing "there were no victims in the offense." But DOJ still prosecuted it. If DOJ wants to prosecute the iPhone case, they can and will.
As with all laws, this statute is selectively enforced. If AT&T/Apple files a criminal complaint, the DOJ will investigate. And if the DOJ acts consistently with previous case law, they will prosecute it as a felony. Both law-enforcement and wireless carriers had a hand in drafting this felony statute, which was part of the sweeping 1994 CALEA legislation that required a national digital wiretapping infrastructure to be implemented at taxpayer expense. (Billions of your tax dollars have already been spent on this.)
The iPhone hackers almost certainly knew about this criminal law, this and cleverly used a 17 year-old minor as their ?front man?. The DOJ is much less likely to prosecute a minor for this felony offense.
Personally, I think this federal statute is wrong-headed and that federal law should permit any cellphone owner to use their phone on any compatible network--just as the FCC regulations allow anyone to attach any FCC type-accepted telephone to a wireline. But consumers? voices are usually drowned out by the sound of large bags of telecom cash landing on someone?s desk. And by federal law-enforcement with their own agenda.
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Link to this comment: http://www.securityfocus.com/comments/columns/453/34703#34703