terms-of-service legal-terms banking
Does installing or removing software legally constitute modifying a device?
<p>The terms of service for my bank's mobile banking include this:</p>

<blockquote>
  <p>USER MOBILE BANKING SECURITY RESPONSIBILITIES</p>
  
  <p>Ensure the Mobile Device is updated with the latest system software
  provided by the mobile carrier or device manufacturer;</p>
  
  <p>...</p>
  
  <p>Do not modify the Mobile Device to bypass security features or replace
  the system software;</p>
</blockquote>

<p>The app refuses to run on a rooted device.  I expect them to point to that last thing about modifying the device to justify it.  But does a software change legally constitute "modify[ing] the Mobile Device"?  It feels to me like a modification to the <em>device</em> would necessarily be a hardware change.</p>

<p>There's no special legal definition of "modifying". Instead, the terms of service say what you can't do and expect the service to actually work. "Rooting" a device is changing it, and specifically has the property of bypassing security features (gives you permission that you would not otherwise have); in involves changes in the system software. Under an ordinary interpretation of language, you have modified the device at the software level. </p>

<p>Most people and most courts would assume that a “device” in this context is the hardware plus the operating system software. So changing the operating system software would be modifying the device. </p>

<p>There would be a tiny loophole if you modify the device and circumventing security features is a side effect that you didn’t know about. I suspect that if I was a lawyer I would have written that sentence differently. But if you lose money because your device wasn’t secure, I suspect that’s not going to save you. </p>
