-- JoseEnriqueFrias - 06 Mar 2015

Minors and their iPhones

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Minors:

Minors have always been subject to special protection in every country of the world. They are looked as a vulnerable sector of society that is in a weak position when dealing with third parties and, hence, need to be provided with a special safeguard that, in some way, aim to balance this natural disequilibrium. Therefore, in most of modern societies minors are considered as citizens with limited capacity of enjoying their rights and obligations.

Generally, minors can’t buy and/or consume certain products, read certain books, watch certain movies, attend certain places, or live by themselves without the watch of a tutor or guardian. Moreover, they can’t be punished as adults for the commission of felonies, travel abroad alone, get married, or apply for public positions. Despite for specific exceptions, minors are not entitled to enter into binding agreements, or at least, they are not compelled to comply with them if they don’t want to.

Minors’ Protection Laws:

California’s Family Code (§ 6700, § 6701, § 6710) states that a minor can only make binding contracts when such don’t involve the delegation or powers, the disposition of real property, or a matter different to an arms length transaction. However, minors are allowed to disaffirm (i.e. repudiate, or declare it void) such binding agreements at any point of their underage situation or in a “reasonable” period after they become adults.

Moreover, Peruvian Civil Code (§ 43, § 44, and § 227) proclaims that when not dealing with arms length transactions, minors under 16 years old are absolutely incapable of binding themselves through any agreement, being any contract that they enter into null and void. Likewise, it asserts that acts of minors between 16 and 18 years old can be disaffirmed at any point without further reason.

Each state has its own minor’s protection laws and, even more, there are binding international treaties that protect them.

iPhones and iOS:

iPhones are sold in the U.S. (and, hence, in California), in Peru, and in most of the countries of the world. iPhones are used worldwide by adults, and also by minors. iPhones are not only mobile devices that allow users to communicate among them, but are also devices by means of which users make contracts with third parties.

Since the Internet era, cellphones became “smart” and stopped being just artifacts that permitted wireless phone conversations, converting into multipurpose goods. An iPhone can be used as a GPS, as a payment device, as a videoconference device, as a photo camera, as a video camera, as a search device, etc. By connecting an iPhone to Internet, its users are enabled to access to an immense amount of information. However, by connecting an iPhone to Internet, its users also enable third parties to access to an immense amount of their personal information, and they are not always as aware as they should about it.

iOS is iPhone’s operating system and it is developed and exclusively used by Apple Inc. By obligation, every iPhone user is, at the same time, an iOS user, and, therefore, is required to agree with its terms and conditions in order to use its mobile device. iOS 8.1’s terms and conditions (http://images.apple.com/legal/sla/docs/iOS81.pdf) state, among other things that, by using their iPhones, users grant Apple Inc. the following rights (the “Rights”):

- Collect, maintain, process and use, diagnostic, technical, usage and related information; - Access to their locations (whenever they enable such option in their phones); - Share users’ personal information with third parties (partners, developers, content providers, etc.); - Use users’ location data; and, - In general, access, collect, maintain, process and use all your conversations, pictures, videos, messages, among other things related to the iPhone’s use.

These terms and conditions don’t only have to be accepted before the iPhone’s first use, but also every time the iOS system is updated (something which has happened frequently since its release in 2007).

Minors and iOS terms and conditions:

As we have mentioned before, iPhones are not only used by adults, but also by minors. Although minors can’t sign service agreements with cellphone companies, they are able to buy iPhones at iStores and operate them through Wi-Fi Internet. Therefore, they are required to accept iOS’ terms and conditions (at the first use and also when updates are released), and, consequently, they individually grant their Rights to Apple Inc.

As of today, this situation has been assumed as normal, and users and Apple Inc. consider these agreements as binding and enforceable. However, how does this situation work under the Californian and Peruvian minors’ protection laws? How does this situation work and under the other minor’s protection laws that exist all over the world?

Can the authorization of permanently sharing ones’ location be considered an arms length transaction? Can the authorization of been permanently monitored be understood as a regular activity of an underage? Do we, as a society, consider that minors can allow third parties to “collect, maintain, process and use” their private conversations/pictures/videos? Is the right of disaffirming such obligations enough for protecting this vulnerable and defenseless sector of society?

Is Apple Inc. or any other company that make contracts with minors through smartphones aware of this situation? Do they have filters and procedures that help to confirm that their contract counterparties are citizens with full capacity to bind them? What if a minor that is an iPhone user disaffirms the granting of Rights? Will Apple Inc. delete all the minor’s personal information that was stored while their iOS terms and conditions were in full effect? Will this minor be able to use her iPhone without agreeing with iOS terms and conditions?

California’s Family Code and the Peruvian Civil Code are from 1993 and 1984, respectively. A lot of water (and data) has passed under the bridge since that moments, and regulations need to be updated. If one of the main purposes of societies is to protect minors, something needs to be done… and soon.