Does Congress Even Understand The Cell Phone Unlocking Debate?

By: Zach Walton - March 14, 2013

You should have the right to unlock your cell phone. Any reasonable person would agree that it should be a basic consumer right. The problem is how one goes about making cell phone unlocking legal.

Lawmakers have come forward with a variety of solutions to this particular problem. All of the legislation provided thus far does indeed make cell phone unlocking legal again. What if these solutions were only temporary fixes though? What if lawmakers really don’t get it? Where does that leave us?

Do you think cell phone unlocking should be made exempt in the DMCA anti-circumvention provision? Should it permanent or temporary exemption? Let us know in the comments.

To better understand this issue, we must start at the beginning – the DMCA. The Digital Millenium Copyright Act was signed into law in 1998, and introduced anti-circumvention provisions that made it illegal to break DRM protections on copyright works. It also barred consumers from circumventing locks on hardware. It’s this provision within the DMCA that makes it illegal for you to unlock your cell phone without your carrier’s permission.

Now, the DMCA contains within it a number of exemptions to the anti-circumvention provision. These exemptions are decided by the Librarian of Congress every three years. In 2009, the Office made the unlocking of cell phones legal through these exemptions, but removed the exemption in 2012. The reasoning was that carriers are doing a good enough job of allowing their customers to unlock their cell phones, but some consumers obviously didn’t feel that way.

In a petition filed on We The People Web site in January, consumers called upon the Obama Administration to make cell phone unlocking legal:

The Librarian of Congress decided in October 2012 that unlocking of cell phones would be removed from the exceptions to the DMCA.

As of January 26, consumers will no longer be able unlock their phones for use on a different network without carrier permission, even after their contract has expired.

Consumers will be forced to pay exorbitant roaming fees to make calls while traveling abroad. It reduces consumer choice, and decreases the resale value of devices that consumers have paid for in full.

The Librarian noted that carriers are offering more unlocked phones at present, but the great majority of phones sold are still locked.

We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.

The petition quickly gained the 100,000 signatures necessary to gain a response from the administration, and surprisingly enough, the White House stood with consumers in defending their right to unlock their cell phones:

The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. It’s common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers’ needs.

This is particularly important for secondhand or other mobile devices that you might buy or receive as a gift, and want to activate on the wireless network that meets your needs — even if it isn’t the one on which the device was first activated. All consumers deserve that flexibility.

So far, so good – the White House stands with consumers on the issue, and will do what it can to give consumers the right to unlock their cell phones. So, where does the White House go from here? It rightly points out that legislation is needed, but strangely calls upon the FCC to work with National Telecommunications and Information Administration to make cell phone unlocking a reality:

We also believe the Federal Communications Commission (FCC), with its responsibility for promoting mobile competition and innovation, has an important role to play here. FCC Chairman Genachowski today voiced his concern about mobile phone unlocking, and to complement his efforts, NTIA will be formally engaging with the FCC as it addresses this urgent issue.

What’s strange about this recommendation is that the FCC and NTIA have no authority over the DMCA. The FCC even acknowledged this in a statement made earlier this month. The only thing these groups can do is come up with recommendations and submit them to the Librarian of Congress. Even then, the Librarian can’t make any changes for another three years. The only way to really take care of this issue is legislative action, and that’s what some lawmakers are doing.

Do you think the White House misses the point? Should the Obama administration put more of a focus on legislative fixes over FCC recommendations? Let us know in the comments.

Since the issue of cell phone unlocking entered the public consciousness, several lawmakers have introduced bills in an attempt to legalize cell phone unlocking. One of the first comes to us from Minnesota Sen. Amy Klobuchar. Her bill – the Wireless Consumer Choice Act – would give the FCC the authority to make carriers allow the unlocking of cell phones:

“…the Federal Communications Commission, not later than 180 days after the date of enactment of this Act, shall direct providers of commercial mobile services and commercial mobile data services to permit the subscribers of such services, or the agent of such subscribers, to unlock any type of wireless device used to access such services.”

It sounds nice, but TechDirt points out that the bill still puts all the power of unlocking into the hands of carriers. The bill wouldn’t actually change anything. Consumers would still have to get permission to unlock their device. This bill would just make it so that carriers couldn’t refuse the request. The bill also doesn’t address any problems that could arise from manufacturers pursuing charges against consumers unlocking devices not sold as such.

Sen. Ron Wyden, a lawmaker known for his pro-Internet legislation, has also submitted a law to address cell phone unlocking. His bill – the Wireless Device Independence Act – would make cell phone unlocking completely legal with no strings attached. The only problem is that the bill doesn’t make the tools necessary to unlock cell phones legal. It doesn’t even allow for people to discuss unlocking methods. In short, Wyden’s bill gives consumers an ice cream cake with no knife to cut it. Things would get messy.

Finally, we have the Unlocking Consumer Choice and Wireless Competition Act from Sen. Patrick Leahy. He’s the head of the Senate Judiciary Committee so he obviously would understand the issues at hand better than anyone else, right? Well, he does in a way, but his bill is the best and worst of the bunch.

For starters, Leahy’s legislation would restore the DMCA exemption for cell phone unlocking. In that way, it directly addresses the issue at hand. Unfortunately, it doesn’t make cell phone unlocking a permanent exemption. Instead, it would restore the exemption for now, but allow it to be brought up again by the Librarian of Congress in 2015. The bill would also require the Librarian of Congress to consider an exemption for tablets within the year.

Leahy’s bill is like applying a band-aid to a gaping wound. It does nothing to actually fix the problem, but instead just hopes that it’s good enough until the wound, or in this case the exemption hearings, reopen in 2015.

Unfortunately, Leahy’s bill probably has the best chance of making its way to the President’s desk. The House could make some changes, but Leahy’s own press release for his bill makes it sound unlikely. It seems that the House Judiciary Committee will be introducing similar legislation that lacks any kind of sensible reform to a decade old bill desperately in need of reform.

The DMCA was meant to address the challenges of the digital age. The 15-year-old bill has not been able to keep up. Cell phone unlocking is not the first challenge to the DMCA, but it’s an important one that could set the stage for further reform to make technology and the Internet more open for all. Unless something changes, Congress is set to miss its chance on meaningful reform yet again.

Do you think the currently proposed bills do anything to fix the problem at hand? If not, can Congress whip any of its legislation into shape? Let us know in the comments.

Zach Walton

About the Author

Zach WaltonZach Walton is a Writer for WebProNews. He specializes in gaming and technology. Follow him on Twitter, StumbleUpon, Pinterest, and Google+ +Zach Walton

View all posts by Zach Walton
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    • ron

      in the uk sell unlocked all phones pay as you go (prepay) and contract. I have bought 2 pay as you go from them in past year and will by my next one from them as well!
      any company that tried to prevent people from unlocking a phone they had bought from them in uk or europe would find sales drop to zero in no time.If a law was brought in to prevent unlocking it would probably be totaly ignored and the backlog of court cases would jam up the system for years with everybody appealing and lawyers taking on the cases for free.

  • http://UnlockCellPhones Anthony Hurst

    Cel phones should be unlocked permanently at the time of sale.

  • N

    Unlock cell phones. Why should we be held prisoner by cell phone companies.

  • Conran

    This, like everything else, is becoming a convoluted mess of idiocy from people who simply don’t understand technology.

    Why do we think that a bunch of old and out of ouch bureaucrats can actually be effective in legislating for modern technology when they don’t even understand the basic issues, never mind the actual technology involved?

    I read another report not a month ago about a local state politician proposing that their state police the entire internet in order to “force” people to use their real identities!

    Seriously, you couldn’t make this s**t up. And old and decrepit politician who doesn’t understand the difference between an ISP and an IP is on some kind of crazy crusade to force the planet to comply with his proposed state law, and all because he didn’t like something a blogger said about him!

    I would love to be in the room with him when someone tells him what that would take to police, the money involved, the investment and the monitoring, just for his own state, never mind the entire freakin’ planet! lol

    These are the ineffective idiots running our governments, and we wonder why we are all in such a godawful mess?

  • Patty

    If the wireless and cell phone providers were reasonable in their rates instead of gouging the consumer, none of this problem would exist in the first place. I, for one, am sick of greedy corporations that have a stranglehold on technology.

  • JIm Kershaw

    Don’t even use a cell phone. Just something else to lose. Besides I love my privacy. If someone needs to contact me there’s no problem. What’s all the frenzy about all you lonely people desparate for calls?

  • Ken

    Carriers like to inflate the cost of phones and then subsidize them to lock in customers. Consumers do have the choice in the marketplace to purchase unlocked cell phones and pay a lower monthly bill. Most choose the higher monthly fee and the phone subsidy. The problem that I see is allowing the carrier to be the unlocking entity. They have no incentive to do so in a timely manner and they usually do not.