[jhc]

There's a huge difference between jailbreaking an iPhone, which the EFF established doesn't (necessarily) violate the DMCA, and breaking your contract by using services from AT&T that you're not paying for. The first means using something you bought and paid for in a way the manufacturer doesn't want you to. The second means using a service that the provider charges for, but you're not paying for. The law is never going to protect the second one.

To start with, tethering without paying for it is definitely a contract violation, and AT&T could cut off your service, retroactively charge you for it, or do whatever else (within reason) the contract provides for. There is little or no legal ambiguity about this. You are getting a service for free from AT&T that other people are charged for, so you're breaking your deal with them and owe them damages.

The (slightly) more interesting legal question might be whether AT&T could ask a prosecutor to bring criminal charges. My uninformed guess is they could, based on something like "theft of services." If I charged $20 a month for you to come fill up a one-gallon bucket any time you wanted from my well, and instead of a bucket you filled up a tanker truck, it would be theft plain and simple, because you'd knowingly be taking something from me without my permission.

(Actually I hate physical metaphors for computer stuff, because they usually distract more than help if you're talking with reasonably technical people. So let's not get sidetracked with questions like, "what if I filled up the tanker truck _with the bucket?_" [Unless you happen to enjoy pointless arguments as much as I do, in which case go for it.] The point is that the contract permits you to access AT&T's network in certain ways for a certain price, and you're accessing it in different ways without paying the different price, and the law's not too likely to be on your side for that one.)

This is all probably hypothetical, though. AT&T wouldn't bother to bring an expensive lawsuit or risk negative publicity from criminal charges, when they can (perfectly legitimately) charge you extra under the terms of your contract and dare you to fight it.

IAAL, in case that changes your assessment of a random person's opinions on the internet.

[jordanb]

Tethering isn't a service though. The service is the data transfer. Tethering is a feature of the phone (which you own, especially if out of contract).

Here's a metaphor: Imagine if the water company charged you per gallon for water you used, but then added an additional charge for having a shower. Since you own plumbing fixtures to which the shower connects, and pay for every gallon, we would consider it unfair for the water company to charge extra for an "authorized" shower.

As far as theft of service, what on earth have you stolen? You pay for the data you transfer. Tethering is simply an "unauthorized" (by the vendor) use of that data.

[lutorm]

However, the water company will most definitely come looking for you if you start selling water to the neighboring town that has higher water prices, since then you are profiting from your subsidized water.

The real problem is that somehow the wireless companies, unlike residential ISPs, have gotten away with not being labeled as pure data transfer companies. It should be none of their business what data you send, but unfortunately that's not (legally) the case.

[dclowd9901]

The dumb pipe argument has been around for a couple years now. These companies (cable, satellite, telecom) absolutely do not want to become utilities. It limits their control over their product, and cuts off several high-yield revenue streams.

If they were regulated like a utility (water or electricity, for instance), you would see any and all arbitrary surcharges disappear, and these happen to be the biggest cash cows for these companies.

[hugh3]

You pay for the data you transfer. Tethering is simply an "unauthorized" (by the vendor) use of that data

Wait, does anyone charge a per-kilobyte data charge? I thought most plans either had unlimited data or some large cap.

[chris_j]

In the UK, most providers charge per-kilobyte. For example, I'm on a contract that gives me 1GB per month. Anything beyond that and I pay extra. It annoys me greatly that tethering isn't included in that (and costs a lot more), whether or not I use the 1GB that I've already paid for.

[rflrob]

> The (slightly) more interesting legal question might be whether AT&T could ask a prosecutor to bring criminal charges. My uninformed guess is they could, based on something like "theft of services." If I charged $20 a month for you to come fill up a one-gallon bucket any time you wanted from my well, and instead of a bucket you filled up a tanker truck, it would be theft plain and simple, because you'd knowingly be taking something from me without my permission.

What I don't understand is how they decide how much to charge for tethering, especially for the capped data plans. Presumably, whether you download 2GB of data straight to your phone vs. 2GB of data through your phone to your laptop doesn't affect their ability to provide network service, so why should they care? In that case, they're simply charging more because some people will pay it. I understand that, but it still rubs me the wrong way.

[gergles]

Their theory is that you'll never use 2 GB on your phone alone, so if you want to tether, you'll actually use close to 2GB, and well, that's an extra charge, citizen.

[noonespecial]

The problem is that they sold you "all the water you could carry" and then reneged when you pulled in with your truck (with the bucket they gave you duct-taped to the inlet with a hole in punched in the bottom).

Its a case of "wait! I didn't really mean all". Its the classic fat man at the buffet problem.

[tsotha]

>The problem is that they sold you "all the water you could carry" and then reneged when you pulled in with your truck (with the bucket they gave you duct-taped to the inlet with a hole in punched in the bottom).

What they sold you is in the contract, which specifies non-tethered data access. To continue your water analogy, they sold you all the water you could carry in that bucket, and you signed a contract saying you wouldn't try to connect the bucket to anything else.

This is really straightforward contract law. If you want to do something, don't sign a contract promising you won't do it.

[wmf]

The second means using a service that the provider charges for, but you're not paying for. The law is never going to protect the second one.

Unless we get strong wireless net neutrality.

[gcb]

quickly, explain how using data on my unlimited data plan is violating my contract.

the tethering plan is a facilitator fee since greedy apple agree to limit features.

it's just like buying an app instead of writing your own.

if you can get your own way of using data you pay for, good for you.

now, forcing you to pay a facilitation fee for something you already have, seems a little mob like.