Tuesday, March 31, 2009

G1 Tethering, Terms of Service, and the Powers of Agents

As those who have read the comments on the previous post know, there is now an open source program that is supposed to let a laptop connect to the internet via the G1, using WiFi from the laptop to the G1, 3G (or EDGE or ...) from the G1 to the internet. As they also know, doing so appears to be forbidden by T-Mobile's terms of service. More precisely, reading the online TOS, it appears to be forbidden unless your plan specifically says you can do it. T-Mobile has, in fact, recently released Webconnect, a USB device to tether a laptop to the internet via the phone system. It does not provide ordinary phone service and costs $60 a month for up to 5 gigs of data.

I spend about a month each year traveling with my family, during which time tethering could be—in the past, with a different phone and carrier, has been—very convenient. I would be happy to pay extra for that month to be able to do so. It occurred to me that there might be such a plan that could be used with the G1 or, alternatively, some way of using my T-Mobile service mostly for the G1 but, when needed, for tethering via the USB device. If there is not such a plan—and there probably isn't—perhaps raising the issue with T-Mobile would get them interested in providing one.

Besides, I didn't have anything else to do this evening. So I got in touch with T-Mobile's online support, which takes the form of a chat window, and put my question.

The answer I got was that, if I download and use the open source tethering application, T-Mobile will not support it. If the result is to somehow damage the phone or its software, T-Mobile will not be responsible. But, according to both the agent I was chatting with and her supervisor, using it does not violate my agreement with T-Mobile, and T-Mobile does not forbid me to tether.

My guess is that they are wrong. So far as I could tell, neither of them really understood the issue despite my efforts to explain it; they were thinking in terms of the use of unsupported applications, not of the use of them to do things forbidden by the TOS. The supervisor may also have been thinking in terms not of what T-Mobile could prohibit but of what prohibition they could in practice enforce—he may not have taken seriously the possibility of a customer not doing something because he had agreed not to do it, even if he was sure he wouldn't be caught.

But both of them said I could do it, with the initial agent explicitly saying that since she was an agent of the company she was entitled to say I could; the supervisor supported her position. Where does that leave me, legally and morally speaking? Am I entitled to rely on what I am told by people who T-Mobile has provided to answer such questions—even if I think their answer is probably wrong?

If, by any chance, anyone from T-Mobile reads this post and is curious, I did save the chat sessions--after telling both agents that I would do so and receiving no objection.

14 Comments:

At 10:20 PM, March 31, 2009, Blogger Vijay said...

Suppose you see an ad in Craiglist which says everything in a house is going for free and gives the address. You show up and start taking things, then you get the feeling that the Craiglist ad was bogus. It doesn't look like the things being offered for free would actually be given away willy-nilly. After a while you're pretty certain a mistake has been made. Do you continue to grab stuff and run?

This actually happened.

 
At 10:31 PM, March 31, 2009, Blogger David Friedman said...

An ad in Craigslist isn't from someone appointed by the owner of the house for the purpose. The people I got my answer from were appointed by T-Mobile to answer customers' questions.

 
At 1:59 AM, April 01, 2009, Blogger Vijay said...

That's irrelevant. The question is whether they are correctly representing the views of the person or people who have the right to control the property or resource. If they are not - whether or not they work for the company - then it would be a contract violation to tether.

Of course if they ever came after you, you could use the statements of the call-center people to mitigate any punishment they pursued.

I've found that explanations of the form "so and so said I could do this..." don't work so well when you're dealing with a large company and trying to justify something you shouldn't have been doing. Especially if you don't have any recorded proof of the conversation

 
At 5:42 AM, April 01, 2009, Anonymous Anonymous said...

Mr. Friedman,

I sincerely hope this post is merely a sign of your intellectual curiosity to the subject, and that you don't really go through life being this careful.
Clearly the benefits outweigh any risks, perceived or real.
Even asking for permission is further than I personally would have gone, but now they've even granted you permission. So while this may be legally interesting, I hope your laptop in online today through your G1.

 
At 8:46 AM, April 01, 2009, Blogger Andrew said...

Related article:
http://androidcommunity.com/android-tethering-apps-pulled-from-market-20090331/

 
At 11:46 AM, April 01, 2009, Blogger David Friedman said...

Vijay writes:

"The question is whether they are correctly representing the views of the person or people who have the right to control the property or resource."

That's one question. The other is whether they are entitled to define those rules, at least for customers they are dealing with. A corporation isn't a real person, and necessarily acts through agents.

The agent I was interacting with told me that, as an employee of T-mobile, she was entitled to tell me what the rules were. I said I was not sure she had that authority, and asked to speak to someone higher up. She put her supervisor on, who supported her position, despite my arguments to the contrary.

Suppose I go to Hertz to rent a car, and the desk agent offers me a very high end car at a very low price. I ask if there is a mistake, and he explains it's a special they have on, so I rent the car. It turns out, either that he made a mistake, or that he is mad at Hertz, about to resign, and deliberately renting out their most expensive cars at cheap rates.

I am quite confident I do not owe them what the car I rented should have cost. I'm not at all sure I'm even obliged to return it before the agreed on time. He, after all, was appointed by them as their agent to rent out cars, so his actions are "their" actions, even if he wasn't doing what they wanted him to.

Hence the title of my post.

 
At 11:47 AM, April 01, 2009, Blogger David Friedman said...

"Clearly the benefits outweigh any risks, perceived or real."

I consider myself constrained, in general, by moral obligations, hence not free to act on a simple benefits-cost basis that ignores such.

 
At 2:29 PM, April 01, 2009, Blogger Max said...

This comment has been removed by the author.

 
At 2:38 PM, April 01, 2009, Blogger Pace said...

You really are a Principled Libertarian.

I cant say I consider an overpaid lawyer's TOS contract to be a moral obligation. I view a TOS as a means for a company to cover themselves legally and empower themselves over the customer should it prove to their ability and advantage. If I, as you,(actually read TOSs) and viewed them in moral terms, I wonder how many products I would actually purchase.

TOSs rarely accommodate innovators/hackers/etc, and it is the innovators who usually introduce new reasons for people to actually buy a product in the first place.

I say use the tether and get on with life. You now have a written OK from the company to assuage your Libertarian Contract Guilt.

 
At 8:16 PM, April 01, 2009, Blogger Chris Bogart said...

Suppose you sign a contract with your neighbor to settle some vagueness about the property line. But it's just lawn there, and your kids still cross the line while playing, and the neighbor just chats with them and ignores it, are they trespassing? Is it immoral or illegal? I'd say no, and that this is a similar situation. The phone company is defining their rights for the record, but then being neighborly about the details. IANAL, though, just opining.

 
At 5:01 AM, April 02, 2009, Anonymous Anonymous said...

Max,

I hate to be a "grammar nazi", but considering your otherwise insightful post, your really ought to correct "principle" to "principal". It was quite confusing on first read.

 
At 10:43 AM, April 02, 2009, Blogger Max said...

Thanks anonymous. I wondered about that when writing, but somehow decided I was thinking about a completely different word (the difference between capital and capitol).

 
At 10:48 AM, April 02, 2009, Blogger Max said...

In agency law there is the concept of apparent authority. Some of the comments imply that many people are not familiar with this.

An agent is somebody who represents another entity (person, business, nonprofit organization, etc.). A real estate agent represents a real estate owner, a lawyer represents a client, a salesperson represents a business, etc. Agents are often given authority to legally bind whoever they represent (a salesperson may sign a sales contract on behalf of the company).

The problem is that the agreement about what the agent can do on behalf of the principal is between the agent and the principal; third parties may not know what kind of limits the agent has (I buy a car from a dealership, the sales contract gives me an extended warranty at no charge but the salesperson did not have permission from his boss to do this). In the US at least, these kinds of agreements remain valid and legally enforceable. The principal (dealership in my example) has to go after the agent (salesperson in my example).

There are several cases where an agent represented a business for several years and had regular contact with customers, one day the business fired the agent, and the agent responded by going to the customers and making promises the business was not willing to honor (or by collecting money which was never handed over to the business). If the business hadn't told the customers that the agent had been fired and the customers reasonably believed the agent had authority to make promises/take payments, then the end result has been (1) the business must honor any promises made by the rogue agent, and (2) the business has had the ability to sue the rogue agent for causing the trouble (or not handing over the money collected fraudulently). Consider this: the "agent" no longer worked for the principal, but was still able to legally bind the principal because of apparent authority from the customers' point of view.

The question is whether the people in tech support or their supervisor have apparent authority. I personally would lean to "no" when it comes to the TOS agreement. You could try contacting the company's legal department, but they would probably not know how to route your request.

 
At 9:37 PM, April 10, 2009, Anonymous Anonymous said...

In the past T-Mobile had taken similar position with GPRS: you can tether regardless what the agreement says if you dont abuse. If you abuse, you are cut off. It worked well for them so it is likely they apply same logic to 3G.

 

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