After months of negotiations, Tom Wheeler—the Chairman of the Federal Communications Commission (FCC)—thinks it’s about time for consumers to be able to unlock their phones without fear of breaking the law. He made that much clear in a letter sent Thursday [pdf] to the president and CEO of CTIA, the industry group that maintains a Consumer Code that most carriers follow. In that letter, Wheeler proposes a December deadline for CTIA to update that code to include meaningful unlocking provisions—or face FCC regulations.
Wheeler's right that consumers should be able to unlock phones that they've already purchased. Unfortunately, the problem runs deeper than an industry code or FCC guideline can address. As Wheeler has mentioned before, and as FCC commissioner Ajit Pai outlined in the New York Times this summer, the real problem is copyright law.
Only one bill in Congress contains a real fix for phone unlocking and the DMCA. Tell your legislator to support the bipartisan H.R. 1892, the Unlocking Technology Act.
Some background: the Digital Millennium Copyright Act (DMCA) includes provisions (in Section 1201) that make it illegal to "circumvent" technical measures designed to control access to copyrighted content, even if the activity is otherwise lawful. Because a user unlocking her phones may have to circumvent a technical protection measure on the copyrighted software that runs it, there's an argument that she is violating Section 1201. As we noted repeatedly, Section 1201 has caused enormous collateral damage and little corollary benefit.
There is a "safety valve" in 1201. Every three years, the Librarian of Congress and the Copyright Office review possible exemptions to 1201, that is, circumstances where users will be allowed to circumvent technical protections without running afoul of the law. But the exemptions must be proposed and considered anew each time. In the latest round last summer, the Librarian of Congress ruled that phone unlocking would no longer be whitelisted.
It's not clear what that change actually means for the legal status of phone unlocking, but consumers were frustrated enough to gather over 100,000 signatures on a White House petition protesting the decision. In response, the White House joined the chorus of voices upset with the latest unintended consequence of section 1201, and legislators have worked through the year to propose various fixes.
Chairman Wheeler’s letter promotes a specific solution to the immediate problem of cell phone unlocking. We applaud his effort to protect consumers.
But unlocking is just a symptom of the underlying disease. What do we really need? Anti-circumvention provisions should never apply where there is no infringement. And relying on a whitelist—even if there were a good whitelist, not one plagued with the problems surrounding the current exemption review process—will always end up chilling speech and hindering innovation.
Take, for example, "jailbreaking" a phone to allow it to run your own software. Jailbreaking is currently covered by an exemption that EFF requested last summer, and that has led to countless interesting applications. But the Copyright Office didn't approve the exemption for tablets or game consoles, and there's no guarantee it will be renewed for phones in the next rulemaking. And the exemption only covers the use of circumvention tools, not distribution. So, you can jailbreak your own phone but arguably you can’t help someone else do it. The result is a cloud of uncertainty over your basic right to tinker with your devices.
We hope the carriers heed Chairman Wheeler’s demand. It's a good industry practice for carriers to help consumers unlock their phones. But we are long overdue for the real fix: repealing or rewriting Section 1201 of the DMCA.