Terms of Surrender – iPhone 4S

I have received no interest for participation in my iPhone research Project yet, but I did get a hold of an iPhone 4S box and documentation to begin looking at.  With the help of YouTube unboxing videos, I can fairly accurately piece together the activation of the 4S and then simply confirm my findings later.  Here are some initial observations.

User agreements in the iPhone 4

Part of my research looks at the construction of user consent in using technology that may go against their best interests in some way.  I began looking at the iPhone 4 when Allen and Warden publicised concerns in April over the use of iOS4’s location tracking functionality (“Got an iPhone or 3G iPad? Apple is recording your moves“).  This sparked a loud backlash from users who were angry their devices were tracking them in a way they didn’t consent to.  In at least one respect, this concern is legally justified – iOS4’s tracking even when you turn off location services went against the Terms of Service (Apple referred to this as a ‘bug’) – but mostly such concern stemmed from a discomfort upon realising the implications of certain functionality, both routine and legal, for such devices.

While others began discussing the length of the iPhone 4’s Terms and Conditions, I began looking closely at its content.  It turns out that, due to certain wording and technical aspects of the activation process, users need to agree to many, many more words than those appearing within the one document – I counted 48,000 words in total (not including phone service provider agreements) earlier this year, and some of these documents have been revised (read: added to) since.  I began to recognise a legitimacy to the argument that not only is it unlikely that a person will read the full terms relevant to their service; it is actually unlikely anyone has read and understood the extent of this agreement.  This raises legal issues (which I don’t want to touch because it’s not my area) as well as strong questions about informed consent.

iPhone 4S’s ‘untethered activation’

Early reports on the iPhone 4S mentioned it would introduce a new ‘untethered activation process’.  Because one of the major contributing factors to the previous model’s word count was its reliance on iTunes (the iTunes agreement is long and links to several other documents), I wanted to see if activation without a computer would drastically reduce the word count.  Also of interest to me was how the smaller screen interface would impact on the readability of the agreements users click through.

Once the 4S was released I began looking at YouTube videos documenting the activation in an attempt to identify the agreements included.  Interestingly, apart from a ‘WIRELESS CUSTOMER AGREEMENT’ (seen in nikoncmk’s video at 0:29) there was nothing.  At what point, then, are users agreeing to the complex iPhone Terms and Conditions?  Previously, iTunes presented users with a scrollable box of text with an ‘Agree’ button.  Now there is no screen at all.  Was it written on the box?

iPhone 4S Terms and Conditions

The box has no mention of an agreement.  It wasn’t until I looked through the ‘iPhone 4S Important Product Information Guide’, the small booklet that gives you no indication that you need to read it*, that I found the terms listed.  Page 2 mentions the booklet contains a ‘software license’, but it’s not until you see it on page 12 that you are told “BY USING YOUR […] (“iOS DEVICE”), YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING APPLE AND THIRD PARTY TERMS”.

If what I have found is correct, that the only mention of the iPhone Terms and Conditions during activation is in a small booklet few people even look at let alone open, this is concerning to me.  It’s one thing for users to knowingly skip over such agreements and laugh to themselves about the silliness of it all, but it’s quite another for this willful ignorance to not even be an option for most users.

Interestingly, I noticed in all the 4S activation videos I saw that users refer to the ‘wireless customer agreement’ as ‘The Terms and Conditions’ (or some variation), as if they see the legal text and don’t even register the title, assuming they’re agreeing to the iPhone documents.  (This raises epistemological questions about this willful ignorance – can one be truly willfully ignorant if they are agreeing to a different document to the one they think they’re not reading?  Gah!)

The content of the iPhone Terms and Conditions (you can download the text here) contains all the usual weirdness: you can’t help someone else update their iOS software (2b); you can’t sell your iPhone unless you include all the original contents of (and including) the box (3a); and the software is licensed, not sold, to the user (1a), which makes sense but is perhaps not entirely intuitive.  However, one big improvement is the resulting word count of the agreement, partly due to better legal phrasing.

In the iTunes agreement (required to activate the iPhone 4), users are told they must agree to the terms before clicking ‘Agree’ and using the software.  This means users must actually know what these terms are, which requires reading them.  The iPhone 4S Terms and Conditions, on the other hand, uses terminology that doesn’t suggest a requirement of conscious understanding.  Users have access to the terms and they ‘agree to be bound by’ them.  If they actually feel like reading the documentation they can, but it’s not a legally binding requirement for use of the service.

But perhaps suggesting this is an improvement is going a little too far.  Acknowledging that users don’t (or can’t) understand the contents of these agreements and making it legally possible for them to participate anyway** doesn’t do much to reduce the complexity and sheer scale of the written content relevant to such agreements.  Though the latest iPhone Terms and Conditions (as of the 15 August 2011 version) are only 10,000 words long (only!), it still refers to other documents that are relevant to most iPhone users.  How many do not use an Apple ID, Google Maps, iTunes, iCloud, YouTube, or any of the other ‘Services’ mentioned?  With each click of a button, how much bigger does your legally binding document footprint grow?  There is a seriously disproportionate relationship between the simplicity of a mindless click in order to use your new, shiny toy just that much sooner, and the complex set of documentation users must now adhere to as a consequence.

Purchasing an iPhone introduces a major shift for many in terms of the services they connect to, so it could be argued that the complexity of this process is justified.  I do agree, to a small extent.  But I believe the iPhone examples help highlight the inferiority of user agreements in constructing informed consent from users, a pressing issue that we need to address.

* ‘Important’, here, suggests to me it has information useful for reference, not that it might include a legally binding document you should read before continuing.

** Not to suggest Apple, or any other company, would take legal action over users just because they didn’t completely understand the agreements they are bound by.  I’m just pointing out the difference between the semantics of ‘you agree to everything within this complex document’ and ‘you agree to be bound by what is in this complicated document’.  The latter better allows for ignorance, which I argue is not only the norm; it’s nearly impossible to be completely informed.  (And this doesn’t take into account the constant updates to these documents.)

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