Law Protects Hackers' Ability To Screen DUI Checkpoints

March 28, 2011— -- Want to avoid DUI checkpoints? There are apps for that.

And while lawmakers called on smart phone companies last week to ban the programs that could enable drunk drivers to steer clear of police traps, legal experts say the law protects hackers who install unapproved software onto their phones.

So far Research in Motion, the company that makes Blackberry, is the only company that has complied with the request from four Democratic Senators. But even if companies were to ban all DUI dodging apps from their online store, customers would still have a legal right to bypass security software independently.

An exemption was granted in 2010 by the Librarian of Congress, the office that oversees copyrights, and makes it impossible for companies to sue individuals for circumventing the company's proprietary security software.

Under the revised rules, it's not illegal for wireless telephone users to hack into a company's security system to access programs that the company has previously disabled if the intent of the hacker is to simply use those programs. This is cited on the government's website copyright.gov as exempt from the 1998 Digital Millennium Copyright Act, passed during the Clinton administration.

"Jailbreaking" or "rooting" a phone is a term used by hackers to describe the process in which a smart phone is unhinged from company control - it allows for the installation of unapproved programs. Savvy customers could load up the DUI dodging software as long as the program wasn't obtained illegally.

A quick search on Google reveals step by step instructions on how to break into various phone models. It's mostly hobbyists and gadget experts who unlock their phones but hacking past security software is the only way to load up controversial apps.

Apple, the company that makes the iPhone 4, is notorious for keeping a tight leash on what software developers can and cannot publish. Most recently Apple banned the download of the "Anti-Gay" app from its app store after immense outside pressure. Last Mark Fiore, an app of Pulitzer Prize winning political cartoonist, was approved after first being rejected for his ridiculing of public figures.

"Apple has every right to curate its store in any way that it wants to...It's its own store it has control over it. But the phone is yours if you want to violate your warranty, jailbreak your phone and put information that you want on your phone, legal information that you want on your phone you have the right to do that, that's what the exemption is for," said Rebecca Jeschke, spokeswoman for the Electronic Frontier Foundation.

But surely an app that warns the driver of a nearby police DUI checkpoint must be illegal? Not so - mobile applications such as Trapster work by allowing individuals to report the location of a police DUI checkpoint or speeding camera nearby thus creating a so called "Trap Map" displayable on the dashboard of a car.

Because the handheld app gathers information through ordinary citizens phoning in the location of checkpoint, legal experts say that there is no way to write a law banning this without encroaching on our right to freedom of expression guaranteed in the constitution.

Emma Llansó, a fellow at the Center for Democracy and Technology specializing in first amendment issues, she doesn't believe that the senators have any legal recourse to outlaw the apps.

"I doubt that talking about DUI checkpoints or red-light cameras is illegal and I think the senators likely would have referenced such a law in their letter if they were trying to alert the companies that their apps were permitting illegal behavior," said Llansó.

And because of the ban's likely violation of the constitution, Congress will likely never create a law banning the app.