Private Terms of Service are not a Substitute for Real Law

Digital Sovereignty

Private Terms of Service are not a Substitute for Real Law

Why the digital world lacks the honesty of a well-made lock and why we need our keys back.

The Honest Physics of the Muar Locksmith

Elias has a small shop in Muar and he spends his days with files and pins and heavy steel blanks. He knows that if a man brings him a lock from a house in Kedah or a shop in Melaka the physics of the tumblers will stay the same and the metal will not argue with the key.

Elias does not care what brand of shoes the man wears and he does not care if the man bought the lock or . The metal is the law and the key is the proof and the door opens when the two meet because the physical world is honest.

There is a comfort in this because it is predictable and it is fair and it does not change just because a company in California decided to change their mind about how doors should work. Elias told me once that a lock is a promise and if you change the lock without giving the man a new key then you have stolen his house.

The Divergent Fates of Hafiz and Sam

I was thinking about Elias and his brass keys while I was sitting in a cafe in Johor Bahru last week and the heat was heavy and the air was thick. I bought a lime ice cream to cool down and I took a bite that was far too big and the cold hit the back of my eyes and my brain felt like it was turning into a block of ice.

While I sat there and waited for the pain to go away I watched two friends at the next table and they were both trying to get the same game on their phones. One friend had a Xiaomi and his name was Hafiz and the other friend had an iPhone and his name was Sam. They are both twenty-four years old and they both work at the same office and they both pay the same taxes to the Malaysian government.

Hafiz (Xiaomi)

🔓

Allowed access to unknown sources.

VS

Sam (iPhone)

🔒

“Developer not trusted.”

Hafiz tapped a button on a website and his phone asked him if he wanted to download a file and he said yes and then he went into his settings and allowed the phone to install from unknown sources. It took him about and he was ready to play and he was happy.

Sam tried to do the exact same thing but his phone told him that the app was not available and then it told him the developer was not trusted and then it told him his version of the software was too old for the new build. Sam sat there and he felt like a second-class citizen in his own chair because his phone had decided that he was not allowed to have the same fun as Hafiz.

Operative Law in the Age of Software

The rules that stopped Sam were not written by the Parliament in Kuala Lumpur and they were not debated by any leaders we elected. The rules were written in a tall building across the ocean and they were enforced by a piece of software that does not care about Malaysian life or Malaysian rights.

We like to think that the law is what tells us what we can and cannot do but for anyone with a smartphone the real law is the terms of service that we click through without reading. This private governance is the operative law of our time and it lacks every single thing that makes real law tolerable for a free person.

The Legislature of the Storefront

Robin G.H. is a researcher who looks at the way screens and apps try to trick us and he spends his time mapping the dark patterns that big companies use to keep us in line. Robin G.H. says that the storefront is a legislature where nobody gets to vote and the rules change by the quarter and by the region depending on how much money the company wants to make that month.

“We have traded our digital sovereignty for a bit of convenience and now we are finding out that the garden walls are actually prison bars.”

— Robin G.H., Digital Researcher

He thinks that we have traded our digital sovereignty for a bit of convenience and now we are finding out that the garden walls are actually prison bars. If a company decides that they do not like a certain kind of entertainment or a certain kind of tool then they can just delete it from your life on a Tuesday morning and they do not have to tell you why and they do not have to give you a way to complain.

The Uneven Rights of the Motherboard

This is a problem because it makes the world uneven and it makes our rights depend on which brand of motherboard we have in our pockets. If you use an Oppo or a Vivo or a Samsung or a Realme you have one set of freedoms and if you use an iPhone you have a different set.

On an Android phone you can still find a way to take control of your own hardware and you can look for a

Mega888 download

and follow the steps to install the APK directly. You have to tell the phone that you know what you are doing and you have to click through the warnings about unknown sources but at the end of the day the phone belongs to you and it obeys your hand.

But on the other side of the fence the rules are much tighter and the gatekeepers are much meaner. If you want to install something on an iPhone that is not in the official store you have to use Safari and you have to find the right developer profile and you have to go deep into the settings to trust that profile.

Even then the company might decide to cancel that certificate and then your app stops working and you are left staring at a grey icon that will not open. There is no judge you can call and there is no lawyer who can help you because you signed away your rights when you turned the phone on for the first time.

Lines Drawn in a Server Basement

We should be worried about this because a rule that is enforced by a company is a rule that only lasts as long as it is profitable. If the company decides that it is too expensive to support older 32-bit devices then those devices become bricks and it does not matter if the owner is poor or if they need that phone for work.

If the company decides that they want to block access to certain things in Malaysia but allow them in Singapore then that is what happens and the lines on the map are drawn by a server in a basement instead of a treaty between nations.

I remember when my cousin tried to open a file for his school and his tablet told him he was not allowed because of an update he never asked for and he looked at me and asked who decided that he couldn’t do his homework. I didn’t have an answer for him that made any sense because the answer is just that a group of people in a boardroom thought it would be better for their stock price if they changed the way the file system worked.

That is a terrible way to run a world and it is an even worse way to run a society where we are supposed to be equal under the law.

When the Computer Says No

The enforcement layer of the modern world is now private policy and it is applied unevenly and it has no published reasoning. When Sam was told he couldn’t play the game he looked for a reason and he found nothing but a generic error message that said the operation could not be completed.

He couldn’t ask the phone why and he couldn’t call the company and get a real person to explain the logic. The computer said no and the computer is the final authority and that is the end of the conversation.

Anyone who wants to see age boundaries or access rules respected should be the most alarmed by this system. If we want to protect people then we need rules that are clear and consistent and open to appeal. When we delegate these protections to a storefront then we are just guessing and we are hoping that the company’s interests align with our own.

A Glass Wall in Your Pocket

The brain freeze I had from the ice cream finally faded away but the cold feeling in my chest stayed there while I watched Sam give up and put his phone in his pocket. He looked at Hafiz who was still playing and he felt like he was standing on the wrong side of a glass wall.

It is a strange thing to live in a country where the law says you are free to do something but your pocket says you are not. We have built a world where the locksmith can change the tumblers while you are sleeping and we have all agreed to pay him for the privilege of being locked out of our own lives.

The Path to Digital Honesty

We need to start asking for our keys back and we need to start demanding that the rules for our digital lives are written by people we can see and people we can talk to. A phone should be like the locks that Elias makes and it should be a tool that serves the person who holds the key.

If we keep letting the storefronts replace the law then we will wake up one day and find out that we do not own anything at all and we are just renting our freedom from a company that can take it back on a whim.

Brass, Fire, and Truth

I went back to the shop in Muar a few days later and I watched Elias work on a heavy old safe and he was using a tiny file to make a groove in a piece of silver steel. He was slow and he was careful and he knew that if he made a mistake the lock would not open and he would have to start again.

He did not have a computer and he did not have a terms of service agreement and he did not have a regional block. He just had the metal and the tools and the truth of the machine.

The Honest Machine

I wish the people who make our phones had half the honesty of a man who works with brass and fire and I wish our digital world was as solid as a well-made door. Until then we are all just guests in a house where the landlord changes the rules whenever he feels like it and we are all just waiting for the next update to tell us what we are allowed to be.