Phone unlocking should be legal, lawmakers agree, but they’re taking different approaches to legislation

March 31, 2013
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A few months back, we featured a string of articles about mobile unlocking and the fight to make it legal. The premise is this: starting this January, it has been illegal to network-unlock your mobile phone because the Librarian of Congress says it’s a violation of the Digital Millennium Copyright Act (DMCA). In short, the handset maker and/or the carrier owns the copyright to the software that runs your phone, and you can’t legally do any modification or measure to circumvent the locks.

This is actually due to the expiry of a 2010 three-year exemption made for mobile devices, which essentially justifies the need to circumvent the DMCA in certain circumstances — for instance, jailbreaking, rooting or unlocking phones (and tablets, but that’s another story). The three-year exemption could have been extended to another three years, although the Librarian of Congress decided against it.

A petition was lodged with the White House, and after reaching more than the requisite 100,000 e-signatures, the Obama administration acted. Actually, while other petitions had been politely brushed off or argued against (such as the famous “death star” proposal), this one was met with much support, to the extent that it has received bipartisan support from both houses of Legislature.

Now the issue is that lawmakers do agree that phone unlocking should be legal, but they’re not quite in agreement — yet — as to how this should be achieved. Here are a few highlights, as explained by a feature on The Verge.

Wireless Device Independence Act

Introduced by Sen. Ron Wyden (D-OR), this particular act is considered the best option so far by advocates, such as Sina Khanifar (the “we the people” petitioner who managed to raise 100,000 plus signatures) and Public Knowledge lawyer Sherwin Siy. This bill seeks to implement the temporary exemption that was in place from 2010 through 2013, modify the language a bit, and then make it a permanent part of the DMCA.

Essentially, this will make unlocking permanently legal, for as long as it does not violate other laws or agreements, such as service contracts, for one.

There is a limitation, though, because it only covers unlocking by the consumer, and not commercial unlocking services offered by third-parties. This means the bill is biased towards tech-savvy individuals who have the know-how in unlocking their devices. While it may not necessarily be too difficult for enthusiasts to do research on how to unlock phones, not everyone can easily do so. Commercial unlocking services may still be liable for infringement under the DMCA.

Unlocking Consumers Choice and Wireless Competition Act

This bill is authored by Sen. Patrick Leahy (D-VT), and comes with a companion bill in the House by Congressmen Bob Goodlatte (R-VA) and John Conyers (D-MI). This bill seeks to bring back the temporary exemption that was in place from 2010 to 2013. The obvious limitation is that it only enforces the temporary lifting of the restriction, which may or may not be enforced again in three years’ time by the Librarian of Congress.

The precedent here is that Librarian of Congress James Billington has already decided that unlocking is in violation of the DMCA, hence lifting the exemption as of 2013. There is no assurance that he will decide in favor of unlocking three years down the road.

Wireless Consumer Choice Act

Sponsored by Sen. Amy Kloubchar (D-MN), this bill seeks a different route toward making unlocking “legal.” In this case, the bill does not want to touch on the DMCA or revisions thereto. But Sen. Kloubchar wants to pass the responsibility to the FCC. In effect, the FCC will be the one to require carriers to allow unlocking in certain circumstances. There are no exact rules yet, and these will be up to the FCC to decide. This is essentially a means to circumvent the DMCA, because it is the carrier-subscriber agreement that will be important here.

For instance, carriers may be legally bound to allow unlocking for subscribers who have already fulfilled their contract, who are traveling abroad (and in good standing), and the like. The FCC may also allow third-parties to unlock mobile devices as “agents” of these subscribers, thereby protecting this kind of business, as well.

One criticism, of course, is that carriers are not always the most helpful when you want your phone unlocked. And this bill might only be effective for direct clients. How about folks who buy used phones? Can they legally ask the carrier to unlock their devices bought second-hand?

Going beyond

Apart from these three identified bills, Khanifar says there is another option, authored by Rep. Jason Chaffetz (R-UT), which is yet unnamed. The draft is not yet available, although it will likely be a companion bill to Wyden’s bill explained above. The proposed bill will also seek to make unlocking permanently legal, and it will also explicitly provide a “safe haven” for commercial entities offering unlocking services.

An interesting point, though: the Register of Copyrights is, itself, planning to overhaul the entire DMCA. This means that all other ongoing legislative work may actually be rendered moot if this is done before any of the bills are passed. Now the question is whether phone unlocking will again be part of the DMCA. Still, what’s important for consumers to know is that our lawmakers are behind us in agreeing that unlocking should be legal. We’re getting there, but folks in power are not quite in agreement as to how.

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