I was aware of that. Of course Nintendo would never come out and say "we'll brick your console if you do this" and would rather leave it up to careful wordplay as to not offend too many users.
What if Nintendo intentionally bricks the consoles detected to use unauthorized devices but then blames it on the update?
Even by some miracle someone discovers that Nintendo deliberately bricked your 3DS, it wouldn't matter because at the end of everything you consented to it.
This has all been discussed previously in the thread.
No, you haven't at any point consented to damaging your
goods for not following
Terms of Use which refer to
services.
The goods you buy in a store are yours and yours only, you own them and you can do whatever you want with them within the limits of law. Don't mistake partaking in a service
(Nintendo Network, eShop, a warranty program etc.) and ownership which are two very different things.
Breaking the Terms of Use/Service can result in voiding your warranty or getting banned from Online functionality as these are services and they are based upon their Terms of Use/Service which you have to follow in order to participate in them, but it cannot result in any form of damage to your private property which is protected by law.
As far as detectability is concerned, a simple trial and error demonstration would be enough to prove that Nintendo is at fault and you would be able to receive hefty compensation. Not only that, Nintendo would also be in violation of the law in many-a-countries and would likely drown in a lawsuit Tsunami.
EDIT: Just to add further clarification, the moment your currency is being exchanged for a system
(or any kind of goods, actually) in a store, the ownership rights are legally transferred to you. From that point onwards, you legally own the system even before it's out of the box and you are protected by the law until you choose to sell the system and transfer the ownership rights to someone else.
Any intentional damage done to the system by any third party is a violation of the law, regardless of what the Terms of Use or Terms of Service state as using goods you own is simply your right. Long story short, rendering a system inoperable is simply against the law.
Using a more abstract example will probably clarify the issue further in terms of the wording.
If I were a bicycle salesman and I added a clause stating that
"the use of unauthorized accessories may cause the bicycle to malfunction and lead to injury" to all my store receipts and then hired a thug to smack people in the knee to make them fall off their bicycles if they do use accessories bought from other stores, I would clearly be in violation of the law.
An
"unauthorized" bicycle bell was not the cause of anyone's injuries - the injuries were quite obviously caused by the thug batting people in their knees. My clause does not protect me in any way because it's not the
"unauthorized accessories" that were the cause of injuries, it was me and my thug.