You know that when you “buy” a mobile phone, you don’t actually have full access to it. Most phones are locked to the carrier you bought them from. But buying a phone may soon look more like actually owning a phone, thanks to a bill to legalize phone unlocking that passed the House last week and faces decent odds in the Senate.
Requiring an act of Congress to use things you’ve paid for as if they are actually your property is maddening. It’s also tech policy as usual. What’s less usual is seeing forward momentum in this area.
While the Unlocking Consumer Choice and Wireless Competition Act sponsored by Rep. Bob Goodlatte (R-Va.) is a flawed solution, it still represents one of the few times when Congress has not just refrained from passing an awful law but moved to fix an older bad law.
The bad law in question is the Digital Millennium Copyright Act, which when it passed in 1998 made it a crime to circumvent “a technological measure that effectively controls access” to a copyrighted work. Bizarrely, our mobile phones were caught up in that sweep.
Stretching the law
So do wireless carriers lock the SIM card slots of phones to protect software copyrights? Not really. They do it to make it harder for you to switch to another carrier (even though they already have early-termination fees to thwart your defection). But the wonderfully elastic DMCA was easily stretched to cover this situation.
The 105th Congress wasn’t completely oblivious about the blank check it gave to Big Copyright with that law, and so the DMCA included a provision that lets the librarian of Congress, on the advice of the register of copyrights, grant temporary exemptions to the anti-circumvention clause. That’s exactly what Librarian James H. Billington did in 2006 when he allowed phone unlocking.
Alas, in subsequent exemption rulings he narrowed that right before extinguishing it almost completely in 2012, on the grounds that “consumers now have access to a variety of unlocked phones.” As in, why whine about not being able to unlock your paid-for iPhone when you can buy a new, unlocked iPhone for $450 and up?
Theirs easily crossed the required 100,000-signature threshold and drew a more serious response than, say, an earlier request that the U.S. build a Death Star. Wrote senior adviser R. David Edelman: “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.”
That got a few policy wheels turning a little faster. By the end of last year, some public nagging by new Federal Communications Commission Chairman Tom Wheeler led to the major carriers pledging to unlock the phone of any out-of-contract subscriber on request — and even to notify them when they’d (ahem) unlocked that option.
That didn’t make the Unlocking Consumer Choice bill irrelevant — the industry promise covers only current and former subscribers, not recipients of their old phones. And it doesn’t let you ask somebody else to unlock the phone.
Making the illegal even more illegal
Goodlatte’s bill, endorsed by the Obama administration in December, does both. And on Feb. 25, it passed the House 295-114 … with one tiny, last-minute change. That revision added a line ruling out “unlocking of wireless handsets or other wireless devices, for the purpose of bulk resale.”
That’s nowhere near the worst change slipped into a bill days before passage, but it was enough to draw denunciations from prior supporters like Public Knowledge and the Electronic Frontier Foundation.
The change was supported by a committee report that explains that “ongoing criminal enterprises … profitably steal large numbers of smartphones for resale after they are unlocked. This legislation would not enable such enterprises to avoid prosecution under the law for the underlying theft or for the circumvention.”
That is silly. Who was ever going to legalize stealing phones? And it does not square with the carriers refusing Samsung’s offer to preload Absolute Software’s kill switch LoJack service on some phones, which I can confirm locks a phone from further use even after you try to reset it to factory condition.
Don’t get used to it
But the worst problem with Goodlatte’s bill is that it does nothing to stop this cycle from repeating at the next DMCA exemption proceeding in 2015. Our rights to use the things we buy should not be subject to editing by unelected officials every three years — not least when they can’t even be consistent in their decisions.
This bill also doesn’t address all the other ethically sound things that remain crimes under the DMCA — for instance, like when I rip DVDs to my computer so my toddler can keep watching them after she inevitably scratches or breaks them. There is a bill that would fix that — the Unlocking Technology Act, sponsored by Rep. Zoe Lofgren (D-Calif.), would make it a crime to defeat a digital lock only if you’re actually trying to rip off somebody’s copyright.
That’s eminently sensible. And therefore likely to take a lot longer to get anywhere than last week’s more modest phone-unlocking bill.