Whether you’re rooting an Android phones or jailbreaking an iPhone, you’re removing the restrictions the manufacturer or cellular carrier placed on the device you own. Unfortunately, rooting, jailbreaking, and even unlocking cell phones is likely illegal in some countries.
Today we will take a look at the laws in the USA, Canada, and the European Union to figure out whether this is actually illegal or not.
Disclaimer: We’re not lawyers and this is not legal advice. We’re just geeks trying to understand what the law is and what we can legally do with the devices we own.
Note that some Android manufacturers allow you to root the device with their permission. For example, all Google’s Nexus smartphones and tablets allow easy, official rooting. This isn’t illegal. Many Android manufacturers and carriers block the ability to root – what’s arguably illegal is the act of circumventing these restrictions.
Apple never allows users to jailbreak its devices or install unauthorized software, so jailbreaking is always performed without Apple’s authorization.
The US congress passed the Digital Millennium Copyright Act (DMCA) in 1999. Under the DMCA, it’s illegal to “circumvent” digital rights management schemes. However, there’s an exemption process that allows the Librarian of Congress to grant exemptions for specific cases.
In the past, unlocking cell phones so they could be used on another carrier was legal, but it’s now illegal to unlock your phone without your carrier’s permission. This is due to the way the exemption process works – what’s legal today may not be legal next year when the Librarian releases a new batch of exemptions. Apple has argued against these exemptions, lobbying to make jailbreaking the iPhone a crime.
At the moment, it’s legal to root or jailbreak a phone if you’re doing so to use legally acquired applications on it. The exact exemption is for:
“Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.” [Source]
So, you have to root or jailbreak your phone ONLY to use applications that require root access or that can only be installed from outside Apple’s App Store. If you’re rooting your phone for any other reason at all – or if you do anything else requiring root or jailbreak access – your rooting or jailbreaking is apparently illegal.
The Librarian of Congress did not provide an exemption for jailbreaking tablets, so jailbreaking an iPad is illegal, even if you’re doing it for the same reason. If you jailbreak your iPhone, you’re a consumer exercising your rights, but if you jailbreak your iPad, you’re a criminal. The same goes for rooting an Android tablet. The exemption only applies to “wireless telephone handsets,” so it’s also a crime to jailbreak a Windows RT device, a Kindle, or anything but a smartphone.
The Canadian government passed the Apple won’t allow into the App Store, you should be okay.in 2012. It makes tampering with “digital locks” illegal, with very specific exemptions for interoperability, security, privacy, encryption research, and unlocking cell phones. So, if you’re rooting your Android to run root-only software on it or jailbreaking your iPhone to install apps
On the other hand, the narrowness of the exemptions means that it’s a crime to root or jailbreak your own device for any reason that hasn’t been specifically allowed. For example, if you jailbreak your iPhone because it’s your own device and you think you should have a right to do it, you’d likely be committing a crime because this doesn’t fall under one of the narrow exemptions.
However, “the Bill prohibits the sale or import of tools and services that enable hacking.” So, while rooting and jailbreaking are legal, creating a tool that satisfied these needs and selling it would be illegal.
In EU countries, this would seem to fall under the Computer Programs Directive. This directive states that:
“The unauthorised reproduction, translation, adaptation or transformation of the form of the code in which a copy of a computer program has been made available constitutes an infringement of the exclusive rights of the author. Nevertheless, circumstances may exist when such a reproduction of the code and translation of its form are indispensable to obtain the necessary information to achieve the interoperability of an independently created program with other programs. It has therefore to be considered that, in these limited circumstances only, performance of the acts of reproduction and translation by or on behalf of a person having a right to use a copy of the program is legitimate and compatible with fair practice and must therefore be deemed not to require the authorisation of the right holder.”
If we’re reading this correctly, it says that rooting or jailbreaking is a violation of copyright, just as the laws in the USA and Canada do. However, it then says that rooting or jailbreaking for the purposes of “interoperability” is an exemption to this. In other words, it’s essentially “fair use” to root or jailbreak with the intent of running other, legally acquired software. This exemption is broad in some ways – and unlike in the USA, it will also apply to tablets – but narrow in others. If you’re not jailbreaking for the express purpose of interoperability, you’re violating the software authors’ copyright in the EU.
On the other hand, the directive also instructs member states to:
“provide… appropriate remedies against a person committing… any act of putting into circulation, or the possession for commercial purposes of, any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of any technical device which may have been applied to protect a computer program.”
So it appears that creating and distributing a rooting or jailbreaking tool is illegal, even while rooting or jailbreaking itself is still allowed. The directive seems to require that everyone independently develop and create their own jailbreaking and rooting tools.
A Crime You (Probably) Won’t Be Prosecuted For
As we’ve seen, jailbreaking and rooting cell phones for the purposes of using software the manufacturer doesn’t approve of is legal in all the jurisdictions we examined. However, many other related things are illegal in some jurisdictions – unlocking cell phones, rooting or jailbreaking tablets, or bypassing restrictions for reasons other than software interoperability. Creating and distributing jailbreaking or rooting tools may also be illegal.
Now, let’s put this in perspective. First, bear in mind that these laws haven’t been tested in court, and it’s possible they’d be struck down. Second, many things we do each day are illegal. It’s been said that the average American commits three felonies a day due to the explosion of vague, broad laws criminalizing more and more things. So it’s no surprise that something as innocuous as jailbreaking or rooting is illegal.
Did you know that, in the USA, it’s illegal to break a website’s terms of service? That’s right — under the Computer Fraud and Abuse Act, each website’s terms of service is given the force of law. If you visit a website and the website’s terms of service says something like “you must provide us with accurate information” and if you choose to enter incorrect personal information while creating an account, you’re now a criminal. Have you ever lied about your age on Facebook? That’s a violation of Facebook’s rules, so you’re a criminal.
Of course, you probably won’t be hauled off to jail for jailbreaking your iPad or unlocking your smartphone, just like you won’t be prosecuted for telling a white lie on Facebook. One exception is if you’re running a business — you couldn’t make a living providing a tool to jailbreak iPads or root Android phones, as the authorities would crack down on you. Another exception is if the authorities want to make an example of you, as the US government did when it prosecuted Aaron Swartz. The US government tried to send him to jail for 35 years and fine him $1 million for violating a website’s terms of service under the Computer Fraud and Abuse Act. Some offenses under the CFAA are even punishable with life-long imprisonment. The case ended when he committed suicide.
So, should you worry about the law? No, not personally – you won’t be arrested or fined for this. But these laws are a real example of government overreach. They should be fixed before they’re used as weapons to ruin lives, as the Computer Fraud and Abuse Act was used against Aaron Swartz.
The Bottom Line
If nothing else, these are the kind of laws that make people lose their respect for the law. They’re pointless laws that criminalize everyday activity with no intention of actually prosecuting anyone for it or protecting consumer rights. They’re the kind of laws that make everyone a criminal in some way or another.
So, did we get something wrong? Probably. It’s likely that even lawyers, judges, and government bureaucrats can’t agree on exactly what some of these laws mean. But we tried our best – and shouldn’t regular people be able to understand what is and isn’t illegal under the law?