Minors and their (supposed) protection:

Theoretically, minors have always been subject to special protection in every country of the world. They are supposed to be 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 arms length transactions, 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.

Some authors consider this “special protection” to be part of a political discourse that does not have a correlation in reality. In fact, they state that minors are permanently abused and that this type of positive discrimination is, indeed, a rights denial. Being one thing or the other, the truth is that, currently, minors have a different treatment than adults and, for good or for bad, are subject to a special legal frame.

Most states have their own minor’s protection laws and, even more, there are binding international treaties that protect them. Generally, these legal dispositions state that the contracts entered into with minors are not enforceable. However, they also go beyond the enforceability, and also prohibit the execution of certain agreements with underage people, punishing those who go against this rule (e.g. sale of alcohol or cigarettes).

Smartphones and their software programs:

Smartphones are sold all over the world, and are used by adults and also minors. Since the Internet era, cellphones became “smart” and stopped being just artifacts that permitted wireless phone conversations, converting into multipurpose goods. A smartphone 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. Nowadays, these are not only mobile devices that allow users to communicate among them, but are also gadgets through which users can execute contracts with third parties.

By connecting a smartphone 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 be about it. To list a few, an average smartphone user publics not only the images that he/she may upload in social networks, but also share his/her location, music preferences, correspondence, among others.

Every smartphone works with a specific operating system (“OS”). For example, Apple phones can only be operated with iOS, Samsung Galaxy with Android, Blackberry with Blackberry, etc. By obligation, every smartphone user is, at the same time, a user of the applicable OS, and, therefore, is compulsory required to agree with its terms and conditions in order to use its mobile device. Commonly, OS require users to authorize them to: (i) collect, maintain, process, and use users personal information derived from the phone usage; (ii) access to their locations and use it for their own purposes; and, (iii) share users’ personal information with third parties.

Minors and OS terms and conditions:

As we have mentioned before, smartphones are not only used by adults, but also by minors. Although minors can’t sign binding service agreements with cellphone companies, they are able to buy smartphones at general stores and operate them through Wi-Fi Internet. Therefore, they are required to accept OS’ terms and conditions, and, consequently, they individually grant relevant rights to mobile services providers, without taking into consideration their special legal condition.

As of today, this situation has been assumed as normal, and users and mobile services providers consider these agreements as binding and enforceable. However, how does this situation work under the special minors’ protection laws? 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?

Proposal:

Technology has aggressively evolved and nowadays we face certain situations that are not yet regulated by the law. Although the minors segment is a great target from the mobile services providers’ business perspective, the truth is that there is a contradiction between minors’ protections laws purposes and the current situation of the usage of smartphones by underage people. Systematically revelation of personal information and renunciation to privacy are serious decisions that, according to the current applicable law, minors should not be taken, and therefore this must be banned.

Consequently, we consider that, as in the case of the sale of alcohol and cigarettes to minors, transacting with minors with regard to their privacy and intimacy have to be prohibited. Therefore, in situations like this, the consequences of executing such agreements should not only be its unenforceability, but also the punishment to those who are on the other side, by the imposition of fines or other legal measures. We know that this may cause certain business problems to the mobile service providers (and other technology companies that deal with minors), but we are sure that the will figure out a solution.

Notwithstanding this may not be respected in all jurisdictions, minors are in fact a population that has to be protected, and measures like the proposed in this paper should be taken into consideration by the authorities in charge.