Does Congress Even Understand The Cell Phone Unlocking Debate?

    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.