Violation of wiretap law (US) or just a horrible mistake?
A story that broke ground recently (29-11-11) regarding Smart Phone Logging secret-software-logging-video looks like it has leapt from a story that on the face of it was about unearthing software that monitored users keystrokes made on their smartphones to something that maybe far more serious than invasion of privacy. An article in Forbes Magazine suggests that wiretap law violations may have occurred phone-rootkit-carrier-iq-may-have-violated-wiretap-law-in-millions-of-cases/. Of course if that suggestion moves from implication, to inference and on to fact then how widespread is the issue surrounding Carrier IQ? Well the company website http://www.carrieriq.com/index.htm suggests their are over 141-million handsets with this software on them. Whether the handsets are confined to being locked to carriers in the United States isn't clear either.
A factor to consider though is whether the implication of this story is not about illegality but about a horrible mistake having occurred based upon the intention of market surveillance having strayed way into legal areas that naturally impose sanctions? Whether the parties involved knew or ought to have known could yet be another matter?
Certainly the work of Trevor Eckhart who unearthed the keystroke sniffing software seems to have credibility for the Electronic Frontier Foundation (EFF) to provide a protective shield in response to threats allegedly made by Carrier IQ, according to both articles.
What is really needed here is not the "hang 'em high, shoot 'em, flog 'em brigade" but in fact absolute 'transparency' how consumers rights are given absolute precedence and with strict liability applied to manufatcurers and operators to reveal all embedded and hidden software on devices and detailed as to exactly what the software do. Importantly, this would allow a consumer to either accept or reject the device. This path of action shouldn't affect Intellectual Property Rights because IPRs are not being infringed. It is though 'clandestine' or 'veiled' knowledge that would be affected as it removes the right to use hiding tactics and avoid non-revelation. Without such transparency, a possible outcome from the articles is in having mentioned the brand names of Nokia, Android, and Blackberry devices in connection with this software. That may well influence how consumers decide to choose their brand named products for fear and uncertainty whether the device in use or about to be sold to them contains key sniffing software.
As 'arky' as it may make me appear, I am rather glad I still have and I am able to use my early GSM Phase 1 handset (900/1800 MHz) that has the main feature of allowing me to send and receive a revolutionary new service called 'SMS text messages'. I know! I know! It's an absolute corker, isn't it!