The White House "agrees" that consumers should be legally allowed to make full use of their phones--but it's still against the law. Where do we go from here?
By Dan Nosowitz Posted 03.04.2013 at 2:49 pm 6 Comments

Unlocked Phones Petition
Unlocked Phones Petition via WhiteHouse.org

A petition created by Sina Khanifar to make unlocking phones legal has garnered over 114,000 signatures on the White House's website--and the White House has finally responded. Before we get into that, here's what's going on.

In 1998, the Clinton Administration passed the Digital Millennium Copyright Act, or DMCA, which was an attempt to criminalize the circumventing of Digital Rights Management, or DRM. You see, in 1998, people still sometimes bought these curious shiny silver discs called CDs. But thanks to new sharing networks like Napster, people sometimes ripped the music off those CDs and shared them with strangers on the internet. To stop that, a few of the major record labels, led by Sony, implemented security measures that theoretically made it harder to rip those CDs. It did not make it very much harder, though, and pirates promptly began figuring out ways to get around this security.

As a weird result of this old (by internet terms) law, unlocking your phone also qualified as a violation. Cellular carriers like Verizon and AT&T usually "lock" their phones to their own networks, so you can't just use a Verizon phone on Sprint (there are also technical reasons stopping this, including differences in network type leading to incompatibility, but usually, you are technically able to use a phone on at least one other network in some way). The carriers don't want you to unlock your phone; they cut you a significant discount on phones so that you'll sign a contract pledging to use only their service for years, and that service is where they make their money.

Of course, it is also pretty easy to "unlock" a phone. Any tech-inclined owner can do it themselves, or, at worst, pay a stranger to do it for $50 or so.

It's not ethically or legally wrong for these carriers to lock their phones; that's the deal you signed up for. But unlocking the phone qualified as a violation of the Digital Millennium Copyright Act, which is not what that law was written to do. So until earlier this year, there was an exception written into the law so users would not be breaking the law by unlocking it. Because it's messed up to make that illegal! It's your property, and as long as you should be allowed to do whatever you want with it.

In October 2012, the Librarian of Congress (who is in charge of appointing the poet laureate and also, bizarrely, in charge of big swathes of copyright law) got rid of those exemptions. So this petition was started to bring the White House's attention to the fact that consumer freedom for a very important and widespread product--the smartphone--was about to be severely limited. A hundred thousand views later, and here we are.

The White House's response is positive; it says in no uncertain terms that "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," and that "All consumers deserve that flexibility." Great! And Sina Khanifar, in an emailed statement to me, says he thinks the response is "wonderful," and "a big victory for consumers."

But the White House's response also makes it clear that this isn't something the President can just sign to make it go away. The Obama Administration will have to work with the Librarian of Congress, the Federal Communications Commission, the wireless carriers (who are enormous and influential corporations), and Congress itself to institute a change. The White House isn't waffling on where it stands, but that's hardly the only (or even the biggest) battle to be fought here.

You can read the entire statement here.

6 Comments

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ToomeyND
03/04/13 at 3:07 pm

Too bad they are still on the carrier's side when discussing in-contract locked phones. The contract mandates the buyer pay the carrier, why does the phone have to be locked as well? The carrier gets what they contract, why can't the buyer have the right to pay two carriers?

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mike13323
03/04/13 at 4:25 pm

Can companies still use unlocking a phone without permission to void contracts and warranties? I really don't understand this issue. I always thought I couldn't unlock my phone due to the contract I signed and the providers polices. Does this mean that regardless of the policies you can unlock your phone or you're still screwed if you do you just don't get screwed by the government?

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laurenra7
03/04/13 at 4:45 pm

Here's an idea. Repeal the execrable DMCA. All the necessary copyright protections were already in place before DMCA added new "protections" that did nothing to reduce piracy and only took away rights from consumers. Piracy of copyrighted movies, music, etc. was already a crime before DMCA; however we used to be allowed to make personal backups of, for example VHS tapes of copyrighted movies. DMCA says now you cannot legally backup (or "rip") your CDs, DVDs or Blu-Rays if they have DRM encryption, as most do.

And let's repeal the Copyright Term Extension Act while we're at it. It was another foolish Congressional shenanigan from 1998. It's also known as the Mickey Mouse Protection Act because Disney pushed to protect their rights to Mickey Mouse forever.

Copyright protection in our original Constitution says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Extending copyright protection long after the death of the copyright owner (e.g.; Walt Disney) when he no longer can benefit financially from the copyright is a repugnant misinterpretation of the purpose of the Copyright Clause of the Constitution.

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phoenixamaranth
03/04/13 at 4:48 pm

The issue is solved by the same contract you sign to get your phone. The carrier very clearly states they will charge you a cancellation fee to make up the cost of the device they provided you. That is why phones with contracts are cheaper; the carrier pays for the phone as long as you stay with them for the contract period.

Technically, that makes the phone their property until the contract is up or the difference of the cost of phone is paid.

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ToomeyND
03/04/13 at 6:31 pm

Phoenixamaranth,

That is well and good. But I'm not talking about cancelling a contract. I'm all for getting subsidized phones at a lower price, and completing the terms set forth in the contract regarding repayment period. However, if I'm traveling abroad, why do I have to stick with ATT on my phone at crazy prices? I'm already paying them their asking price. I should have the ability, on the phone that I am making my timely payments, to get a cheap sim card in the location I am traveling.

Many people in the US do not travel outside of it. So they get a better deal than those that do travel? For the same phone? As of now, ATT will not allow me to use my device with another carrier, regardless of whether ATT offers service in that area or not.

If my parents live in an area where only T-Mobile works and not ATT, why does ATT have the ability to prevent me from popping in a card while I'm visiting for a week? Instead, they'd rather I go without service, or purchase a full phone from T-Mobile just for the one week. That helps no one except their competition.

If you purchase a car, and take out a loan to pay for it, are you not allowed to modify the car until it is paid off? No. As long as you are making your payments, what you do with the car is up to you. Why are phones different?

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bgdavison
03/05/13 at 3:44 pm

So, I know a guy who had to have an extended time in a country where Verizon does not have any roaming partners. The CSR this guy talked with to suspend his contract not only helped him suspend his plan, but also walked him through unlocking his phone for use on the other country's network. His wife reminds him of this when ever he starts b!+(#ing about the company. Verizon may suck in a lot of ways, but at least in that instance, they did the right thing.


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