Agree with everything you said in the above post. Which is why I simply can't understand the logic of the other side. The only reason anyone might feel like they could get "caught" is the fear that Verizon is looking out for something they should not have the jurisdiction to look out for in the first place. It absolutely DOES matter that it's not regulated by law. In most of the examples you cited earlier, there are laws involved...smoking in public buildings, marijuana, child abuse. I wouldn't and couldn't argue for any of those for one moment because the laws are clear. This has come down to exactly what I've felt it's been all along...an ethical/moral issue with no legal backbone.
I find it troubling that many are willing to rationalize one "breach of contract" in rooting vs another in tethering if in fact the contract is the only leg left to stand on this argument. There is what is called an "unenforceable contract" and I believe that is what we have here. There are 7 elements (that I know of) to a contract:
1.) Agreement
2.) Consideration
3.) Intention
4.) Capacity
5.) Form
6.) Consent
7.) Legality
The one I'm concerned with is legality which described for the purpose of contracts means "the purpose of the agreement must not be illegal or contrary to public policy". And therein lies the problem with the contract vzw has in place. And I also think it's why they haven't pursued tethering from a legal standpoint, because they know they are wrong. Or if not wrong, they cannot be proved right. And even more frightening to them, if they make the monetary commitment to pursue this in order to set a precedent, they may well LOSE. So they have decided to be renegades and make their own rules contrary to the law of the land and hope people just kinda go for it. Some have and some have not. People certainly have different views of what is a moral high ground for them, that's human nature I suppose.
The reason I used the specific examples that I did has to do with the fact that at one point there were no laws governing the activities. There was nothing in legal terms that said you couldn't beat your kids while smoking marijuana or a cigarette in a public building. I also chose those examples along with the P2P example because the laws were set in place to put a stop to them. Now, were they put into place because of morality? Some of them were. Others were put into place because of concerns to the general public. If you look at it, most laws are put into effect for ethical/moral reasons (marijuana, child abuse, etc.) and others are there because they effect someone's monetary bottom line (MP3 downloading). It doesn't change the fact that there are laws now and at some point in time they were none.
Rooting is not a breach in contract and saying that is not a rationalization. It has gone through the courts and has been ruled upon. This is one of the reasons you can't really get in trouble for doing it, beyond the voided warranty. You own the phone and can use it as an anchor for a boat if that is what you chose to do with it.
Whether Verizon's contract is considered unenforceable or not isn't for me to decide. I'm not a lawyer and I've never played one on TV. If you want to take it into the legal system and see what happens, that would be up to you. Verizon is not the only carrier that has this policy though. Just about every carrier out there has a tethering policy. Some allow for it with a separate plan and other state that tethering is not ok at all.
Trying to say that being able to tether without compensation to the carrier is "contrary to public policy" is a pretty hard sell. There is nothing in public policy that says you should be able to tether from your phone to begin with let alone for free.
With regards to TOS in general, you may think that there is no legal issue with violating it, but there have been cases where violating a websites TOS has resulted in convictions on charges of computer hacking. That was on a simple social website and the charges were brought about due to a fake profile that was created. So just because you don't think a contract is enforceable doesn't make it so.
In the end, you may see it as an ethical or moral argument, but it is what it is. I have no idea about your ethics or morals so I won't really argue that. The fact is that there is a contract set in place just like there are rules on this forum. You agreed to that contract when you signed it, just like you agreed to the rules of this forum when you signed up. Violating the terms of that contract by bypassing the agreed upon tethering package violates the terms of that contract. While there aren't any laws on the books that say you can or can't do that there are plenty of contract laws out there. As you say, you don't think the contract will hold up in court, but personally I'm not willing to put that to the test and neither is the owner of this forum.
When it is all said and done, brighter legal minds than you or I will probably decide this one day. How it will turn out is anyone's guess. When the legal smoke clears then the forum policy may change, until then the discussion is still off limits per the forum rules.
