March 4, 2013 | By Parker Higgins and Mitch Stoltz

White House Supports Unlocking Phones -- But the Real Problem Runs Deeper

The White House has come out today in support of legalizing the unlocking of cell phones for use on different carriers, saying it makes "common sense" that "all consumers deserve that flexibility." The statement came as a response to a recent petition that received over 114,000 signatures.

Why were people concerned about cell phone unlocking? Unlocking a phone for use on a different carrier may run afoul of section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits the so-called "circumvention" of technical locks on copyrighted works. In a nod to the unworkability of such a ban, the law outlines a process for the Librarian of Congress to establish some exemptions every three years. In 2006 and 2010, the Librarian approved an exemption targeted at cell phone unlocking, but opted not to in the 2012 process. That doesn't necessarily make unlocking illegal, but it does strip it of the explicit legal protection it had before.

Today's White House statement acknowledges two important points about the controversial anti-circumvention provision: that it has gotten in the way of innovation and competition, and that its rigid rulemaking procedures are an "imperfect fit" for some issues—especially technical ones. That sentiment was echoed in the Library of Congress statement also issued today: The rulemaking process "was not intended to be a substitute for deliberations of broader public policy."

The White House is correct: the failure to protect phone unlockers from legal threats was misguided. But the more important problem is that the DMCA puts an unelected official in charge of regulating personal devices in the first place. Today the outrage is about phones with carrier locks, but what really rubs against the grain of common sense is the premise, set forth in DMCA's section 1201, that the Librarian of Congress should have to temporarily whitelist certain uses every three years.

We're glad the White House recognized that if you buy a device, you own it, and you should be able to use it as you choose. Your rights to reuse, resell, or give away devices are especially important—and the Obama Administration gets this. As the Administration's telecommunications agency pointed out last year, digital locks backed up by legal threats aren't just used to police copyrights—they're used to block competition.

Of course, the DMCA doesn't apply only to mobile phones and unlocking. It also gets in the way of jailbreaking tablets, game consoles, and other personal devices. It's used to threaten academics and tinkerers, to block publication of research on computer security, and to cover up embarrassing failures of DRM. It's still potentially illegal to watch subscription video services or Blu-Ray discs on the devices and operating systems of our choice. And even where EFF and others have convinced the Library of Congress to create temporary exceptions to the DMCA for things like phone jailbreaking, DVD decryption, and read-aloud functions for ebooks, creating and selling the tools to do these things is still illegal under the DMCA! Now that the Obama Administration has recognized the problem, we hope they will commit to fixing it—and not just for phone users.


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