Does installing or removing software legally constitute modifying a device?

Question

The terms of service for my bank's mobile banking include this:

USER MOBILE BANKING SECURITY RESPONSIBILITIES

Ensure the Mobile Device is updated with the latest system software provided by the mobile carrier or device manufacturer;

...

Do not modify the Mobile Device to bypass security features or replace the system software;

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 device would necessarily be a hardware change.

Answer 1

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.

Answer 2

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.

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.