Wikileaks and Apple – an Opinion

The following is taken almost verbatim from my answer to a Quora question and the comments that followed. Q. Was the WikiLeaks iPhone app really violating the Apple App Store “Terms of Service”? Apple spokesperson stated that ?Apps must comply with local laws and may not put an individual or group in harm?s way.? Is that actually the case?

A. Yes (in my opinion). Section 3.2(b) of the iPhone Developer Program License Agreement says:

You will not use the Apple Software or any services for any unlawful or illegal activity, nor to develop any Application which would commit or facilitate the commission of a crime, or other tortious, unlawful or illegal act[.]

A comment was posted:

Considering there has been no decision whatever on the legality of the matter, I fail to see how anyone could say with certainty that it was, in fact, a violation. In fact, considering that even the U.S. Government hasn’t brought legal action on the matter against Wikileaks, it would seem this is a non-issue for them. Then again, why bother with legal action when you can leverage your power over the corporations in your country to do your bidding unethically, eh?

I responded as follows:

Let’s be clear that I was answering the question as to whether Apple’s terms require adherence to applicable law, which they do.

Two comments have raised a separate issue, whether Apple should be allowed to invoke the adherence-to-law provision in the absence of a legal decision that a law has been violated. The following is my opinion on this issue.

In the U.S. there are many fundamental rights, including the right to express oneself (free speech). However, there is not, and there should not be, a fundamental right to express oneself via (publish) an iPhone app. (WikiLeaks succeeded in distributing the documents in question without an app.) Rights pertaining to iPhone apps should be specified in agreements among app developers, Apple, and app users.

Adherence-to-law provisions exist to help providers of products and services extricate themselves quickly and easily from potential legal liability caused by others. (Such provisions are routine in website terms of service, for example, and I would recommend such a provision to any client that was in a position similar to Apple’s.)

If Apple were limited to terminating the agreement only after a legal decision (presumably either civil or criminal) were delivered, Apple would be placed in an untenable position: It would have to sit around for years waiting for a decision to be rendered, the whole time increasing the likelihood that it, too, would be found liable for contributing to whatever illegal activity took place.

I can see how the situation would be different if there were serious doubts about whether WikiLeaks violated any laws. In this situation, however, I believe there is little doubt.

In summary, I believe that Apple’s position is prudent from the business perspective and is not unethical.

Dana H. Shultz, Attorney at Law  +1-510 547-0545  dana [at] danashultz [dot] com
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