Apple: You Can’t Sue Us for Battery Throttling Because We’re Contractors

Apple’s lawyers have come up with a novel new argument for why people shouldn’t be allowed to sue the company for slowing down their devices with iOS updates: Apple, you see, actually operates in a role analogous to that of a construction contractor and cannot be held liable for the damage it inflicts to a device in the name of improving it.

This interesting legal theory was raised in the context of an ongoing lawsuit against Apple over its decision to begin throttling iPhone performance to protect battery life. After updating to iOS 10.2.1, some iPhone 6 and 6s customers noticed that their devices had become sluggish. It took a year before anyone realized that the “fix” for this problem was to replace the device battery. Doing so restored an affected device to full performance. Apple justified the decision by claiming it prevented sudden shutdowns in the event of cold temperatures, but it never told customers when or how this throttling was applied. In fact, it never notified people it was throttling the CPU at all.

I called this decision “unbelievable” when the news broke, and I still boggle at the stupidity of what Apple did here. There was a persistent urban myth in the Apple community concerning how Cupertino supposedly made each new version of iOS slower on old phones as a deliberate means of pushing people to upgrade. In reality, the truth was more prosaic — Apple didn’t used to bring up new iOS versions on old devices and didn’t incorporate them into testing until relatively late in the process. Our own analysis demonstrated that the performance impact of new iOS versions was shrinking over time as Apple got better at bringing new software to older CPUs. Then Apple went and did the very thing it had been falsely accused of doing for years.

A total of 61 lawsuits against Apple have been consolidated into an ongoing case. Apple’s lawyers have responded to the lawsuit with a rather interesting legal theory: Apple can’t be held responsible for any damage to iPhones resulting from an iOS upgrade, because Apple is basically just like a kitchen contractor you might hire to upgrade your sink.

Here’s the filing, courtesy of the Register:

Plaintiffs thus consented to any alleged “damage” caused by features in the updates Plaintiffs now claim they did not want. In this way, Plaintiffs are like homeowners who have let a building contractor into their homes to upgrade their kitchens, thus giving permission to the contractor to demolish and change parts of the houses; any claim that the contractor caused excessive damage in the process sounds in contract, not trespass.

The argument here is that the issue is more properly dealt with under contract law, rather than as a form of criminal liability. Whether the court will buy this argument remains to be seen, but the example doesn’t hold much water as a matter of technical applicability.

Apple is not an aftermarket contractor hired to perform secondary maintenance or renovation on a private home. It’s the firm that built the house. Every appliance in your home — let’s call them “apps” for short — was either built by Apple or approved by them to operate in your home. And Apple never communicated to consumers that it had built a slowdown mechanism into their devices. The courts may find that this isn’t sufficient grounds to grant relief to the plaintiffs, but we’re not talking about incidental damage reasonably incurred during a renovation, but about the installation of features that the customer never asked for and should have been informed about.

Did Apple have a genuine reason to make its devices throttle to improve cold weather or old battery performance? The answer is quite possibly yes — if you’ve used an iPhone in cold weather, you know they don’t tolerate it particularly well. But the company’s reasons for failing to disclose this information are harder to square with any kind of positive consumer outcome, while its initial refusal to give customers any kind of control over the behavior didn’t speak well of the feature’s ultimate purpose. When Tim Cook warned on Apple earnings in January, he put some of the fault on users who took advantage of the inexpensive battery upgrades Apple sold for $29 during the past year and noted the company blamed this trend for at least some of its iPhone sales drop.

Explanations like that have an ugly way of reopening what the justification for the battery change was in the first place. For a company supposedly dedicated to improving its user experience, Apple sure seems to have prioritized a course of action that would force people into buying new devices instead.

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