So, usually I associate super-shady things with hiding the fact that they're super-shady.

I'm thankful, but also genuinely curious, why they put this explicitly in their TOS.

It just kind of seems to be like the kind of person/org who would implement this shady stuff in the first place, would also actively hide that they're doing it.

Is there a legal reason that protects NightOwl by explicitly putting it in the TOS? E.g. does this prevent them from being sued for any of it, where they could have been successfully sued otherwise? Like it's technically do to all this shady stuff but only as long as it's in your TOS?

A lot of "free" VPN apps do the same thing and I haven't heard of any of them getting in legal trouble. It's kinda like running a tor exit node except most buyers just wanna borrow the user's IP to scrape sites that are otherwise impractical to scape with just a captcha solver due to aggressive blocking of non-residential ISPs and heavy rate limiting.

The difference being that it's somewhat related to the app's operation. In this case, it's completely orthogonal to the app's marketed function.

I'm not a lawyer, but the terms of service are an agreement with the user, so yes. They're not hiding anything because then they'd get sued.

If they didn't disclose "this shady stuff" then the user can try to resolve their dispute via remedies stipulated elsewhere.

Really there are several ways they could have gone about writing this agreement. This is probably the simplest for everyone. This is also how the bigger orgs write their agreements. They state their intent and you have to agree or fuck off.

The badly written agreements (what you were expecting) are less honest and try to explicitly have the user waive some rights entirely including any remedies in or out of court, but those can usually be deemed unenforceable because they violate established rights and precedent rulings.

Also not a lawyer. I'd think there's a level of interpretation to the enforceability of a given clause if it's not adequately exposed or is unconscionable in fairness. I'm guessing it's not so easy as clickwrap = rock solid contract.

Sure if a majority of users expect apps to not steal your data or misuse your internet connection.

Sadly this isn't the case anymore. The layperson is distrustful by default and can only rely on the more astute to blow a whistle. Even a judge would just say to not install apps that aren't critical to your everyday life and be done with it. Nobody has the time to swat at flies.

> The layperson is distrustful by default

This sounds like it was written from an alternate reality. It doesn’t match my experience at all

Yeah distrust isn't enough to deter the layperson from using an app anyway. That's my whole point.

I'm curious to know why this is any more or less shady than an app that uses ads to monetize? Those ads use a ton of bandwidth and share a ton of information about you? If they're just passing some packets through your IP for web scraping what's the big deal?

Bright Data offers an SDK for app developers to monetize their apps this way (https://bright-sdk.com). Maybe I am naive but this seems exponentially better than monetizing by sharing every tidbit of information Google and FB can get about me as I move through the web. Genuinely curious why this is so negative?

I’m no lawyer but my guess is that the bar is so low for what’s actually legal- and no one generally reads these EULA’s- that it’s easier just to have it in there.

The bar is intentionally low "for what's actually legal".

You really don't want the government interfering with the implementation details and business models of software products. That's a really bad road to go down.

The problem is really a lack of inspiration for both the dev and user. In this case someone made a trivial tool and didn't know how else to monetize it than being a scumbag and exploiting social norms and good will. The user also decided to use something that's dumb and not worth risking making any agreement with any entity at all.

Situations like this are where free software excels. Things that are inconsequential in premise should stay that way in practice.

Probably compelled by Apple, or removal from store.

There’s a lot the app is doing that would not be allowed through review. It’s distributed via Sparkle which is pretty common for mac apps.

There is no way reviewers would accept that if they read it

The app isn't on the App Store. (switching light/dark is a private API so it wouldn't be allowed on the store anyway)

>I'm thankful, but also genuinely curious, why they put this explicitly in their TOS.

The guy's in the US, not China or Cyprus, so there's actually a chance he could get in trouble.

My assumption is there is a non-trivial number of people who will never read or notice that. Much less understand the ramifications.

This reminds me of the Jerry Seinfeld joke:

"I bought the Superman Halloween costume and on the side of the box it said 'do not attempt to fly'.

I always wondered about the kid who was:

- dumb enough to think they could fly

BUT

- thought to themselves 'wait, let me check the box first. Oh! Good thing I checked!'

The TOS sounds a little bit like the "do not attempt to fly" warning.

> does this prevent them from being sued for any of it, where they could have been successfully sued otherwise?

As I understand it, anyone can sue anyone for anything. What matters is convincing a judge/jury that you have been wrongfully harmed by the defendant. So if someone can make a good enough case for damages stemming from this data collection, then they can successfully sue.

This doesn't prevent them from suing, but it makes their case significantly weaker if the defendant can argue that the user agreed to have their data collected.

I guess "modifying their device’s network settings" is already covered under whatever permissions we had to give it to perform the original task of switching on/off dark mode? That's a bummer. Would be nice if app permissions were more granular if that's the case.

And this is the risk that operating system developers run when you take away features or you don't develop features that your userbase wants.

Look at the amount of Start Menu modifiers there are out there for Windows. All because Microsoft keeps on changing the start menu. Why? I don't know. I just want to get rid of the Recommended section, but I'm not allowed to.

Last night I got a notification that advertised Game Pass to me. I angrily clicked on manage notifications and there’s a notification source called “Suggested” that somehow was turned on. That was the last straw for me. I go through so much diligence setting up my browser’s ad block, only for the OS to bypass all that.

For now “Suggested” is turned off and I disabled all notifications for good measure, but I don’t know how much longer Windows will allow that. I don’t intend to find out.

Isn't this sort of what the web is for? Service providers give you shiny objects for free and in exchange you give them complete access to your digital life. Heck, that's why I canceled my LinkedIn account and got a new email address. I was just too tired of all the job spam I couldn't opt out of.

Harlan Ellison (the science fiction writer) had a refrain... "Pay the Writer!" My refrain is "Pay the Developer." If you're upset some free app is p0wning your iPhone, consider that you're expressly NOT the customer.

<snark>Hah! 4 downvotes! That's all you can muster! Come at me, bro!</snark>

Yes, this last bit is sarcasm.

> <snark>Hah! 4 downvotes! That's all you can muster! Come at me, bro!</snark>

AFAIK, 4 is the maximum number of downvotes that will be recorded for a single post. It's possible I'm wrong, but occasionally I write things that do not receive universal adulation and never has one gone below -4.

Selling ads is one thing. Selling my Internet connection, which violates the ToS of most ISPs, is a vastly different situation.

How So? I mean, NightOwl doesn't have an arrangement with your ISP, they have an arrangement with you.

I'm not sure your ISP is going to delete your account because you didn't know some app was doing something shady. If the standard is every app user has to know what each app does under the hood, then there's going to be a lot of people who won't be able to match that standard.

No but you could be SWATed because someone sold child porn through your IP.

Regardless of how you can prove your innocence, it can be traumatic for you and your family, you can say goodbye all your computers and phone, you'd have to deal with the gossip from neighbours and relative and possible social exclusion, and possibly your couple/mariage as well.

The difference is that NightOwl hides what they are doing in the ToS. Nowhere in the software itself or the website (exlcuding the end of the ToS) does it say what they are doing.

The (new) developers of NightOwl have to do this because they understand that most users would never willingly participate in the trade they are "offering".

Ad-supported business models don't involve deception, the users understand the website/app/whatever is funded through advertising.

Their TOS essentially just says "Don't use the app"

> NightOwl app cannot be held responsible in any circumstances for Shared traffic fees or any other costs the User may incur in accordance with agreements with their internet service provider. The Application use might be prohibited or restricted by the User's service provider or applicable laws. The Application may not be compatible with all service providers' policies and regulations. The User should confirm the ability to use the Application with their service provider.

are you kidding? of course they will. back in the early days of the interwebs, it was not unheard of to have the ISP block your account when your machine got hacked from malware and used your box/connection as a SPAM server. From they, consumer ISPs just block that port. They've also added terms about not running servers on the consumer connection. While your server would have to be using a lot of bandwidth to get noticed, it is part of their terms that you agree to.

So yes, they will absolutely suspend your account until they are satisfied the usage is in alignment with their expectations.

> Isn't this sort of what the web is for? Service providers give you shiny objects for free and in exchange you give them complete access to your digital life.

If you made it clear you were being sarcastic, you wouldn't be getting downvoted.

Yes this is what many businesses want you to think. The web isn't for anything in particular besides general communication bound only by the laws beyond the first amendment.

Sarcastic? Not really. But I do see I am violating H. L. Mencken's rule: Never argue with a man whose job depends on not being convinced.

I sell to customers who purchase my goods. I'm not trying to sell my company to a VC whose using it to suck up ad dollars. My customers are my users, your customers are VCs.

Neither the First Amendment nor any particular set of laws bind the web generally.

If you're commenting on the difficulty of policing the intarwebs, I heartily agree with you.

If you're saying CD230 doesn't exist, I encourage you to rejoin consensus reality. But if you're trying to say CD 230 is in need of review, I would heartily agree.

Stop being a jerk and play nice. Say what you mean without attacking people.

I don't think I was attacking people, but will defer. In less inflammatory prose, let me say:

There is a problem on the net that is exacerbated by funding models which seek to use free services to do "bad" things. The Ad-Driven model has problems that the needs of the end user are often not considered paramount, but instead the needs of the advertiser are. After all, they're the ones paying the bills. Print newspapers famously had this problem, balancing the interests of editorial and advertisement.

Furthermore, there are people on HN whose enterprises are funded by ad revenue. I worry they (and their investors) err on the side of the advertisers rather than on the side of the users when there is a conflict. I doubt there are many here who would go to extremes such as enrolling customers iPhones into botnets, but there is always that temptation. What if you were a couple weeks away from laying everyone off and a shady partner sidled up to you and suggested such a move. I believe it would be a moral crisis for any entrepreneur: shaft your customers or shaft your business, its investors and its employees.

I am lucky to operate from retained earnings and (at least for the time being) could firmly reject such an offer. I appreciate that I am probably in the minority in this respect.

I bemoan the current state of affairs where so many entrepreneurs could even conceivably be tempted by such a Faustian bargain (without asserting the majority are.)

I am ensaddened that experiments like Bitcoin seem to have devolved into ponzi schemes rather than effective micropayment vehicles. Such a platform could conceivably open up new business models which would allow entrepreneurs to ignore this particular devil.

> What if you were a couple weeks away from laying everyone off and a shady partner sidled up to you and suggested such a move. I believe it would be a moral crisis for any entrepreneur: shaft your customers or shaft your business, its investors and its employees.

That is the difference between ethical and unethical operators

I love you to death, but this 'aint helping.

Name and shame the developers and the company.

> "enables"

it's not a violation of your freedoms and privacy, it's an opportunity!

/s