The Electronic Frontier Foundation (EFF) took exception today to Apple's claims that "jailbroken" iPhones could cripple a mobile carrier network, calling the argument nothing but "a hill of beans."
Apple's claims came in a filing to the U.S. Copyright Office (PDF document), which is conducting a regular review of the U.S. Digital Millennium Copyright Act (DMCA). Last year, the EFF requested an exemption to the DMCA for cell phone jailbreaking.
The EFF, and other technology companies that support it, including Firefox maker Mozilla, want the Copyright Office to let users install applications not available through Apple's App Store on their iPhones without fear of copyright infringement penalties.
Apple has opposed the exemption. Last February, for example, Apple argued that "jailbreaking," the term for hacking an iPhone to install third-party applications not sold through Apple's own App Store, was illegal.
In a written response to questions from the Copyright Office, which posted the document July 22, Apple upped the ante, claiming that jailbroken iPhones could be used by drug dealers to avoid authorities, by hackers to skirt carrier-enforced limitations or even by attackers to crash the software at cell phone towers.
"In short ... [this] would be much the same equivalent of getting inside the firewall of a corporate computer -- to potentially catastrophic result," said Apple. "The technological protection measures were designed into the iPhone precisely to prevent these kinds of pernicious activities, and if granted, the jailbreaking exemption would open the door to them."
"This is all just a lot of fear, uncertainty and doubt," said Fred von Lohmann, an EFF senior staff attorney and the organization's expert in intellectual property law, calling out the words that make up the FUD acronym. "There were no surprises here. Apple's made the same arguments of the copy infringement question, and the rest of it, including the cell tower claims, is essentially irrelevant. Whatever else attacking cell phone towers is, it's not copyright infringement.
"There's nothing that Apple has conjured up that amounts to a hill of beans," von Lohmann added.
He said Apple's claims that jailbroken iPhones could bring down a carrier's tower software was just a hypothetical game. "None of this has ever happened [with jailbroken iPhones]," von Lohmann said. "You don't see the independent iPhone stores filled with malicious software tools. Instead, they're filled with the software that Apple has refused to offer in its App Store."
Ticking off several such applications, including Cycorder, an iPhone program that lets users take video, von Lohmann added Apple's recent rejection of Google Voice, which is now available for both the BlackBerry and Android platforms. And several applications written to leverage Google Voice have recently disappeared from the App Store.
"If we had to live under this kind of regime for computers, consumers would rebel," said von Lohmann. "This isn't about stopping attacks, it's about Apple and AT&T trying to lock out other programs. I can't imagine anything that's any more blatantly anti-competitive."
Von Lohmann was optimistic that the Copyright Office will ultimately approve the EFF's exemption. "In 2006, the Office gave permission to unlock call phones, and I don't see our jailbreaking exemption very different from that," he said. "The FCC and the Department of Commerce are already beginning to smell a rat when it comes to exclusive ties between hardware and software, and the Google Voice exclusion is really a development that will help us."
The U.S. Department of Justice has also reportedly begun investigating how mobile carriers structure exclusivity deals with handset makers, a move that could bar agreements like the one AT&T has with Apple and the iPhone.
The Copyright Office will make its final ruling in October.