Apple does its part to battle terrorism

Today in my contracts call we were looking at boilerplate and the problems of contracts of adhesion.  After class one of my students pointed out to me that buried in the fine print of its iTunes Store Terms and Conditions is a clause where Apple is doing its bit to foster non-proliferation.  Clause 34(g) declares in part

You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

Notice, as I read this clause not only are terrorists — or at least those on terrorist watch lists — prohibited from using iTunes to manufacture WMD, they are also prohibited from even downloading and using iTunes.  So all the Al-Qaeda operatives holed up in the Northwest Frontier Provinces of Pakistan, dodging drone attacks while listening to Britney Spears songs downloaded with iTunes  are in violation of the terms and conditions, even if they paid for the music!

That’ll show ’em…

(Unless, of course, they can argue that the clause violates the reasonable expectations doctrine.  I mean, don’t we assume that when we download iTunes that we’ll be able to use it construct a nuclear missile?)

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20 Responses

  1. Bruce Boyden says:

    Several years ago, the last time I looked at this issue, language like this was inserted because encryption software was on the Dept. of Commerce’s Export Control list. That itself was an evolution from the time, 12 years ago or so, when encryption was treated as a munition and regulated by the State Department.

  2. Nate Oman says:

    Bruce: Interesting. Do you know if the ability of language like this to shield companies has ever been tested? If I understand you correctly the idea is to protect Apple from liability for exporting encryption technology. On the other hand, if I put the technology out there on the web for anyone to download, it seems a bit much to claim after the fact that I didn’t provide access to undesirable parties because of a clause in the boilerplate of the terms of service.

  3. Tony says:

    Public opinion and sentiments will always change as time goes on. Technology is no different in US’s export control. There was a time where stuff like this was legal:

  4. Civ. Pro. King says:

    These clauses are relatively old, but recently they might have been revised by many companies to reflect new social phenomena and change in State Dept./Treas. regs.

  5. The Department of Commerce’s Bureau of Industry and Security regulates the export of cryptography. There were a series of First Amendment challenges to the regulations (Berstein v. U.S. and Junger v. Daley) in the 1990s, the result of which is that the government backed off the regulations such that posting material on the web isn’t considered an illegal export. The BIS page is here.

  6. Bruce Boyden says:

    Nate, to my knowledge the provisions have never been tested. My vague recollection is that the export controls on encryption evolved to the point where any encryption in a mass consumer product received informal approval, without need for prior review from BXA. (I haven’t looked at this since at least 2005.) But I believe there were requirements that any strong encryption product subject to the export controls nevertheless contain some sort of contractual restriction barring re-export to certain countries (state sponsors of terrorism). So I believe the contract provisions were either required or at least were intended to serve the licensing process, not form some sort of basis for exclusion from liability.

    A couple of things: I’ve never seen one of those clauses saying specifically you couldn’t use the product to build weapons. The concern was always that terrorists would use encryption to hide their plans. So maybe something else is at work here. Also, the encryption controls are (or were) administered by the Bureau of Export Administration in the Dept. of Commerce. But I’m seeing references to the Dept. of Treasury above. Perhaps there are money-laundering regulations that apply here too, although I’m not sure how Itunes would fall within those schemes, which I thought only applied to financial institutions.

  7. M says:

    Might be a preemptive defense to not violating 18 USC 2339.

  8. Evan Carroll says:

    If this is it, Apple has a far superior way to tackle this problem when compared to block huge swaths of land, like Iran and Syria. I’ll take an a disclaimer no one reads over the type of nuisance sourceforge is creating any day.

  9. Bernd Felsche says:

    It’s all so obvious now!

    Anybody without an iPod must be a terrorist! 🙂

  10. Greg says:

    Maddox pointed this out years ago

  11. Zach says:

    I think that it is great that there is language that supports the fight against terrorism. No US company should support or allow terrorists to use their products for any reason.

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