February 23, 2014 | By corynne mcsherry

The Wrong Tool For the Job: Cell Phone Unlocking Bill Creates New Problems

Congress is scheduled to vote tomorrow on a "phone freedom" bill that is supposed to help solve the cell phone unlocking problem. We're all for phone freedom and we wish we could support the bill. Unfortunately, however, the costs for users outweigh the benefits. 

For more than a year, users have been up in arms about a change in the law that cast a legal cloud over the basic and common practice of unlocking your cell phone. That cloud arose in a somewhat convoluted fashion but here’s the short version: Unlocking nominally requires interfering with software on your phone.  That, in turn, may mean violating a provision in the Digital Millennium Copyright Act (DMCA) that makes it illegal to “circumvent” technical measures designed to control access to copyrighted content, even if your purpose is otherwise perfectly legal. As we’ve noted repeatedly, this provision (Section 1201) has caused enormous collateral damage with little corollary benefit.

It's not at all clear that Section 1201 properly applies to unlocking, but as long as there is uncertainty, there is risk. Until recently, however, that risk was minimized thanks to a legal exception granted by the Librarian of Congress. Every three years, the Librarian 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, via cumbersome and expensive process.

In 2012, the Librarian of Congress ruled that phone unlocking would no longer be whitelisted, and set the ruling to take effect in 2013.  That caused a huge public outcry, with good reason. Section 1201 was supposed to inhibit copyright infringement, not stop people from switching phone carriers (or jailbreaking their devices, or remixing videos, or sharing information about security flaws, all of which Section 1201 also inhibits). Phone locking is designed to protect a business model, not a copyright. 

Congress, the White House, and the Federal Communications Commission have responded with a variety of proposals, including a deal brokered by the FCC requiring carriers to allow customers to unlock their phones when their contracts expire.

Which brings us to 2014. The bill set for a vote tomorrow builds on the FCC deal by making phone unlocking legal for end users and people who help them, at least until the next exemptions are decided. (That’s about a year and a half from now, if you’re counting.) A tiny and temporary fix, but better than nothing, right?

Wrong.  That’s because the latest version of the bill contains new language expressly excluding “bulk unlocking.” Bulk unlockers acquire phones from a variety of sources, unlock them, and then resell them. By expressly excluding them, this new legislation sends two dangerous signals: (1) that Congress is OK with using copyright as an excuse to inhibit certain business models, even if the business isn’t actually infringing anyone’s copyright; and (2) that Congress still doesn’t understand the collateral damage Section 1201 is causing. For example, bulk unlocking not only benefits consumers, it's good for the environment—unlocking allows re-use, and that means less electronic waste (our friends at iFixit have a great set of resources on that problem.)

Only one bill currently in Congress actually tackles the real problem: the "Unlocking Technology Act." That bill, introduced last year by Representative Zoe Lofgren and a bipartisan group of sponsors, would limit violations of section 1201 to actual cases of copyright infringement. The bill embodies the common sense notion that anti-circumvention provisions should never apply where there is no connection to actual infringement. Thousands of people have already contacted their representatives in support of the bill. Join them and tell Congress we want a real fix for Section 1201. 


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