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In this question about bypassing TOS on a device and allowing free tethering, is there any danger of legal action being taken against Android Enthusiasts or SE in general? I am aware that there are several sites/forums/etc that offer advice for doing just this, but I figured it couldn't hurt to ask the question.

  • Good question. I'd be inclined to say not, but I'm not a lawyer nor do I represent SE. – Matthew Read Sep 9 '11 at 17:53
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    personally, I'd love to see providers to wake up in the new world, I don't want to support operators that sells you a data plan then blocks you from using your data plan, it's an unethical business practice. – Lie Ryan Sep 10 '11 at 6:16
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In my opinion, this depends.

What is the motivation of the person asking? Is it to steal stuff and avoid paying for it?

Or is it to solve some actual legitimate technical problem they have, which they can't solve by any other legal means?

In the latter case I'm inclined to allow it because the motivation is honest.

  • For this particular case the user doesn't want to pay $25/month because he only uses the service occasionally. – ale Sep 13 '11 at 13:01
  • I'm inclined to say it's not the former case, because he's already paying for the data. It shouldn't matter how he uses it, and the carrier will throttle him regardless. – Matthew Read Sep 13 '11 at 16:29
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    The FCC has weighed in on this, and the carriers apparently have the right to do whatever it is they want in terms of throttling and tethering because it constitutes "reasonable network management." If you're asking for a legal opinion on this, the intent of the user or the site hosting the information is totally irrelevant. Tethering is not a right, unfortunately, it is an "optional feature" subject to the whims of your carrier. – DavidAP Sep 13 '11 at 18:18
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Here is my take on this.

Breaking the terms of service of a contract is not illegal in the actual meaning of the word. The worst carriers can do about it is actually outlined in that very same contract, terms of which are being broken. Logically, if something is not illegal to do, it definitely cannot be illegal to talk about or host information about. Until and unless carriers start threatening sites, I think such questions and answers should be permitted.

The only thing I would do is amend the answers with the warning that the person themselves will be responsible for the TOS breach, and will be accepting any and all responsibilities their carrier may enforce upon them.

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I'm not a lawyer (I am a law student), but the short answer is likely "yes."

Third party interference in a contract (Tortious Interference) applies here, since you're actually encouraging a party to breach their contractual obligations by circumventing anti-tethering measures.

Will carriers ever sue a site for hosting such information? There's been no sign they will, yet, but as paid tethering becomes more ingrained into the mobile data payment structure, and the majority of Americans start to see it as part of "cell phone service," I imagine they'll start taking some kind of action.

Speaking from the carrier's point of view (not that I agree with it), they'd compare it to posting an FAQ on how to send unlimited text messages, using the carrier's SMS, while hiding that information from the carrier (if that were possible - it's just a hypothetical).

Obviously, this would be seen as "stealing service." I think in the future, C&D letters may start popping up in inboxes of websites that post tethering circumvention methods, but who knows what the carriers will do, or when they'll do it.

EDIT: There's probably also related FCC regulations that might apply here, though the fact that it's mobile internet that you're "stealing" makes it unclear to me just how those regulations might be used here, if at all. You'd have to ask a telecom lawyer.

  • I think a more likely scenario is that some user uses a piece of advice here, their carrier detects it and completely cuts off their service, and now the user wants to come after us. – ale Sep 13 '11 at 1:48
  • I'm sure SE's ToS would preclude such an action. – DavidAP Sep 13 '11 at 2:08
  • A more apt comparison would be telling the user that they can use their data plan to send unlimited SMSes via Google Voice. They're already paying for the data, it shouldn't matter how they use it. One can torrent from their phone, which surely uses more bandwidth than viewing a web page from a laptop; I wish the lawmakers were technically savvy enough to understand that. It's not like the carriers won't throttle you if you start downloading a lot anyways, whether from your phone or from a tethered device. – Matthew Read Sep 13 '11 at 16:34
  • Like I said, I don't agree with the comparison, but as an analogy it is sound and would probably stand up to muster in a court. There's been tons of debate on this and the FCC has basically caved to the carriers and given them free reign on things like this, because they constitute "reasonable network management." Lawmakers could step in, but there's a lot of pro-carrier lobbying to get through, and the carriers would scream bloody murder. – DavidAP Sep 13 '11 at 18:14
  • That's true. I'm glad I live in Canada :P our laws aren't perfect either but ones like this are rarely enforced. – Matthew Read Sep 21 '11 at 15:09

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