When Getting Back What You Already Had Costs You Your Privacy – The Story of Software Updates

-- By EdyGlozman - 06 Mar 2015

Introduction

A basic equation stands at the heart of the relationship between humans and technology giants: usability and functionality in consideration for the waiver of privacy. The more information individuals agree to share about themselves, the better services they are promised. This note’s goal is to touch on a subtle deviation from this equation, which I believe has skipped the eyes of many. It appears that in certain instances the giants downgrade the quality of services and implicitly condition restoration upon users’ consent to a more significant privacy sacrifice. To better illustrate the matter, below are two examples:

Examples

Example #1 – GPS Services

While it appears that over the last decade the accuracy level of GPS for smart phones has stagnated, the requirements from users have gradually increased. Currently – for the sake of ‘accurate GPS service’ – some devices require users to approve location reporting and history collection. These functions enable technology giants to periodically store and use the device's most recent location data. Should users not accept these options, their GPS will perform much slower – despite the fact that reporting and history collection do not seem to be necessary in order to enable a satisfactory (and possibly maximal) level of service.

Example #2 – Gallery vs. Photos

Android users who upgraded their phones’ software system from Kit-Kat 4.4 to Lollipop 5.0 were surprised to find out that the default application for photo handling called ‘Gallery’ was removed, and they were left only with ‘Photos’ application. Unlike Gallery, Photos is lacking a few basic and convenient functions, the main of which is the division of photos (according to their source) into folders. However, if the user backs up all of the photos online (as Photos loudly encourages the user to do), these functions (and more) would of course be available. Thus, functions that were previously available without uploading photos, are available now only if the user agrees to share with the ‘cloud’.

Legal Framework (Tip of the Iceberg)

A question arises: isn’t there a legal hurdle for the giants? They incorporate changes as part of software updates which involve contractual relations between them and the users. Doesn’t cancelling or harming existing useful services, amount to a breach of a contract? It seems that (at least) currently, this is hardly the case. First, users can reverse most of the changes with basic technological knowledge, e.g., the Gallery application is still relatively easily acquired. In this sense, the giants merely change the default (a powerful tool as some research suggests, yet not coercive or binding). Additionally, and even if the changes are irreversible, the giants have a contractual claim that users have inter alia agreed to the removal of certain services in the (somewhat voluntary) process of updating their phones’ software.

The primary consumerist counterclaim would be that the license agreements users have with giants are standard-form contracts. However, in order to generate special scrutiny, users should prove that the contract under examination is adhesive, which is not always easy. Even if it is considered such a contract, it does not follow that the court would determine that the contested clauses are unenforceable, especially since the giants would claim that these clauses introduce certain benefits and efficiencies to the users. As per other consumerist claims (e.g., deceptive acts), which rely on the FTC Act, they seem not to fit and require too heavy burden of proof in the circumstances.

Thus, though these unwelcome changes are disturbing, the legal toolbox seems insufficient (especially as long as the software changes are taking a soft and disguised shape).

Technological Alternatives

In the absence of a legal solution, technological adjustments should be considered. The abovementioned examples assume the use of proprietary software, i.e., software licensed under exclusive legal right of the copyright holder, where the licensee is given the right to use the software only under certain conditions, and restricted from other uses. There are, however, alternative options where instead the user controls the software.

In the mobile area, a user can run Cyanogenmod – an enhanced open source firmware (halfway between hardware and software), which offers features and options not found on regular Android Stock. Such features include performance enhancements and application permission management. The latter is likely to eliminate (or at least limit) phenomenon similar to the described above, where updates mess with the performance of applications. Another relevant solution is Replicant, a free open source operating system that puts emphasis on privacy and security. Additionally it is also possible to download applications from sources such as F-droid (instead of Google Play Store). These adjustments (especially when coupled with additional privacy supportive software such as Chatsecure for communications, Tor for browsing and more) may allow users to maintain same quality services without giving up their privacy and security. Having said that, progress in the mobile arena is relatively slow and currently insufficient to provide a comprehensive solution. Thus for example, there is no supportive free hardware, and the free software runs on a very limited set of devices.

In the computer (compared to the mobile) sector however, more far-reaching solutions, which include both hardware and software, exist. Instead of using a proprietary laptop, it is possible to obtain computers such as the Libreboot_X200 or the Gluglug_X60 (both of which are endorsed by the Free Software Foundation). Another adjustment available is to obtain a storage server as an alternative for the giants’ ‘cloud’ –thus making giants’ attempts to condition the quality of services upon users’ joinder to their cloud, ineffective.

To conclude, while legal solutions are currently far from reach, users may adopt technological alternatives to the proprietary software. While these alternatives, especially in the mobile context, are not likely to eliminate all problems, they do provide some tools to users who are not willing to give up their privacy for the sake of maintaining the same quality of services.