Mobile Devices are Increasingly Locked Down and Controlled by the Carriers

How Cell Phone “Customization” Undermines End-Users by Redefining Ownership

1968 was a landmark year for communication in the United States. The same year when HAL 9000, the psychotic computer from 2001: A Space Odyssey, famously said “I’m sorry Dave, I’m afraid I can’t do that,” consumers were suddenly freed to connect any phone or devices to their telephone lines. In the seminal “Carterfone” Supreme Court case, the nation’s highest court ruled that a carrier did not have the right to restrict an end user's ability to add devices to the network.  This decision is what made everything from answering machines to the dial-up modem legal, the foundation for the modern Internet.

However, over forty years later mobile telephone networks are locked down like the wireline networks of the last century. More and more consumers are discovering that their cell phones come with software customization from their service provider that mandates what they can and cannot do with the device. Much as AT&T attempted to control the devices and applications allowed on their wireline network, mobile carriers are now doing exactly the same thing. 

Because of the lack of adequate consumer protections, wireless providers have systematically undermined the freedoms we take for granted on wireline networks and are now engaged in practices whereby purchasing a wireless device does not translate to the ability to define for yourself how the device is used or what applications you run on the network.  As we've pointed out in previous wireless Carterfone analyses; “In the wired world, their policies would, in some cases, be considered simply misguided, and in other cases be considered outrageous and perhaps illegal.”

On Tuesday October 5, 2010 the New America Foundation posted a blog highlighting a new “feature” of the T-Mobile's G2 with Google phone (G2).  The G2 is a follow-up to the G1, Google’s first major foray into the cellphone market, and the phone was expected by many to be the next iteration of Android's open platform. Like many Android-based phones, the version of Android installed on the phone by default is “customized” by the carrier,which often translates to a reduced feature set. Unfortunately, users quickly found that the software on G2 phones contained an advanced hardware and software mechanism whose function is to roll back owner-initiated modifications to the device's default system software by, as T-Mobile confirmed, storing “some components in read-only memory.”

As a result, updates or customizations applied to the phone's default Android version are stored in temporary memory. When the device is restarted, the user-initiated customizations, modifications, and preferences, including features included in the standard Google-maintained version of Android, are erased and the G2 reverts to T-Mobile's variation of the Android operating system. Paraphrased by Gizmodo.com “it's like installing Linux on a Windows computer one night, and waking up to find [Windows] Vista back in place.”

This discovery dramatically shifts the notion of what it means to “own” digital technologies. Digital music, books and software are often no longer “sold” but “licensed” to consumers, to the point where a California court recently blocked the ability for a user to resell software if restricted by the software's End User License Agreement. Today’s mobile handsets are too often being purposefully designed to restrict end-user choice.  The first iPhone's non-standard headphone jack limiting headphone options raised eyebrows, but the new generation of mobile devices are more like personal computers that have been purposefully built to undermine their own functionality. The G2 and other mobile devices contain hardware that actively resists user-initiated changes to the software, undercutting the ability of a user to modify the product to best fit their needs. Functionality that is useful to end-users is restricted at both the hardware and software level – even though the devices themselves are fully capable of running these services and applications.

Cell phones today are reminiscent of landline telephones during the pre-1968 era when only AT&T-approved devices were allowed to connect to their network. In 1968, the landmark Carterfone ruling allowed other phones and opened up the door for innovation of devices, services, and applications. While landline connections today are open and standardized, mobile carriers like AT&T, Verizon, Sprint, and T-Mobile operate mobile networks much like the pre-Carterfone telephone era. Phones are locked to carriers, innovation is stifled, and everything from early termination fees to 24 month contracts make switching service a major hassle.

Today, this command and control approach is being extended onto the end-user devices themselves. In his aforementioned paper calling for network neutrality in the wireless space, Tim Wu chronicled a growing number of ways carriers have locked down cellphones. For example, he noted that when Verizon released the first phone in American with Bluetooth capability in 2004, many of the Bluetooth features on the Motorola V710, including the ability to transfer files and photos, were removed. Instead, Verizon offered a service to transfer photos for a fee. A more recent example is how Apple’s iPhone is infamously locked into a walled garden where applications are carefully screened before being admitted into a market where Apple takes a 30% cut. Until recently, Apple was being investigated by the European Union for antitrust violations over the limited number of programming languages that could be used for applications.

The battle over control of devices has ramped up in recent years. Carriers are adding more "bloatware” to phones-- software that is only free for a limited period of time and is often difficult or impossible to remove. User-developer communities push back by finding ways to modify phones or unlock disabled features, while carriers often use “software updates” to disable these modifications even though new workarounds are sometimes released by the developer community within a day. Sometimes called “jailbreaking” or “rooting”, the freedom to modify a device recently gained legal standing when the U.S. Copyright Office granted individuals a fair-use exemption to the Digital Millennium Copyright Act for modifying software of a device.  These modifications can open up alternative application markets and allow users to customize their devices or gain access to money saving services like Skype, which currently has access to its full features on Verizon's mobile network but has had key functionality disabled on other carriers' networks. Carriers and device manufacturers create barriers which disincentivize end-user modification and warn changes will result in a voided warranty.

The HTC G2, however, is part of a new trend in locking down a device. While the iPhone and previous Android devices had restrictive software limiting features like tethering or blocking unapproved applications, this latest handset contains both hardware and software mechanisms that check and respond to software modification. Some might argue that the G2 is actually a step-forward in innovation or consumer protection -- protecting less savvy consumers from accidentally breaking their phone -- however this “protection” does not come with any opt-out, and thus acts as a blanket ban that prevents user-initiated modifications from even the most tech-savvy.  In essence, this “protection” gives control over the device to T-Mobile, not the devices' owners.  While the Motorola Android-based phone the Droid X “eFuse”contained a piece of software that checked for illegitimate software on start-up and would automatically make the phone inoperable if detected, the HTC G2 keeps the phone functional by reverting to the approved operating system. Both practices, however, are a direct assault on consumer freedom and what it means to “own” a device.

Despite increasing enclosures of mobile communications, government has turned a blind eye, despite cases such as the G2 coming in conflict with the principles outlined in the FCC's 2005 Policy Statement on Broadband Internet Access. T-Mobile has already publicly admitted that the G2 pro-actively limits the ability of users to “modify and re-engineer their devices at the code level,” which obviously restricts a user's right to “run applications and use services of their choice.” The G2 is fully capable of running these additional services and applications, thus the limitation is fully due to T-Mobile's business practices, not to any inherent technological limitation of the device itself. The close relationships between carriers and handset manufacturers have also allowed carriers to limit technological innovation at the edges of mobile broadband networks. As of this writing, the removal of tethering clearly illustrates that T-Mobile and other carriers are actively preventing consumers from connecting their “choice of legal devices that do not harm the network.”

During September 2010, Chairman of the Energy and Commerce Committee Henry Waxman was working on network neutrality legislation.  While AT&T and Verizon were supportive of the legislation, a leaked draft revealed only limited protections for consumers using wireless networks. After the legislation failed to gain enough support, Rep. Waxman called on the Federal Communications Commission (FCC) define their authority of broadband and protect consumers.

For his part, the FCC Chairman Julius Genachowski has been criticized for being slow to enact consumer protections even on wireline networks. Just last month, the FCC delayed a decision on wireless networks by issuing a call for public comment that was highly redundant with earlier proceedings.

While Washington decision-making remain hog-tied by companies like AT&T that are spending millions of dollars lobbying each quarter, consumers too often have little option but to buy a phone not unlike the HAL 9000, which refuses to implement user-initiated requests and actively thwarts efforts to fix crippled features. The fundamental question the FCC now needs to answer is not if developers will find a way around the latest blocks, but if companies should be allowed to continue actively blocking users from truly owning and having full control over the mobile devices they buy in the first place.