Congress Says Unlocking Cell Phones is Okay

You ask: why is this even a question?

Thanks to action by Congress – something we don’t get to say often, these days – it will soon once again be lawful to “unlock” your cell phone so as to use it with a different carrier.

You ask: why is this even a question?

Because of an earlier act of Congress – the Digital Millennium Copyright Act (DMCA), to be specific – whose Section 1201(a)(1)(a) provides that:

[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.

The software in a phone is a “work protected under this title.” The locking software is a “technological measure that effectively controls access” to the phone. So to “circumvent” the software by unlocking it violates the DMCA. Even a first offense, if done “willfully and for purposes of commercial advantage or private financial gain," can draw a fine of up to $500,000 plus up to five years in the federal penitentiary.

The DMCA allows the Librarian of Congress, the official in charge of copyright matters, to make exceptions to the law. And indeed, he used to have an exception on the books that covered cell phone unlocking. Located in 37 C.F.R. § 201.40(b)(3) (2012), it permitted the "circumvention of technological measures that effectively control access to copyrighted work", i.e., "unlocking" of

[c]omputer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. 

Note the requirement that unlocking (“circumvention”) be initiated by the “owner of the copy of the computer program” – i.e., the owner of the software in the phone. That’s you, right? When you’ve bought a phone, haven’t you also bought the software inside it? That’s what a reasonable person might think.

But judges do not necessarily conform to the usual standards of reasonableness. Three federal appeals judges in the Ninth Circuit, back in 2010, ruled that the purchaser of a device that included software did not also purchase the software, but only a license to use it. Delighted, the wireless phone companies took this decision to the Librarian of Congress, who duly issued an order, effective on January 27, 2013, that limited the above rule to handsets purchased before that date. Unlocking a phone acquired on or after January 27, 2013, became illegal, subject to the full weight of the DMCA and its five-year prison term.

The public – or the subset that pays attention to these things – was outraged. A White House petition reached 114,322 signatures before the White House responded favorably. The FCC Chairman weighed in to ask if the Librarian of Congress should be making these decisions. So did the tech blogs, many of them using far stronger language. But in fact there was not much the White House, the FCC, the courts, or even the bloggers could do. The only practical recourse lay with Congress. And Congress did not look like a good bet. Paralyzed by partisan gridlock and the upcoming November elections, it has recently managed to pass very little substantive legislation.

But Congress surprised us. Both houses recently passed a bill that overrules the Librarian of Congress, undoing his rule change and reinstating the previous exception, quoted above, to allow unlocking handsets for the purpose of changing providers.

The bill also directs the Librarian of Congress to conduct a rulemaking on whether the exemption should expand to include “any other category of wireless devices in addition to wireless telephone handsets” – presumably tablets and the like.

The President has promised to sign the bill into law. (Rusty on how this works? Review here.) We will let you know when he does. In the meantime, you can be researching other carriers’ coverage and pricing plans.

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Comments (1) Read through and enter the discussion with the form at the end
Curtis J Neeley Jr - July 29, 2014 1:49 PM

Very well said but this statement of truth is on the margins of "contempt of court". All moral citizens must have a more firm contempt for "United States' porn-protecting courts" to remain wholly moral.

"..judges do not necessarily conform to the usual standards of reasonableness..." - or ANY moral standard whatsoever.

Why should the "right to marry", "right to vote", "right to consume online pornography", or "right to consume alcohol" be restricted for minors in order to protect them from harm caused by rights they will inherit in time.

Above idiotic question is paraphrased from ACLU v Ashcroft COPA ruling by porn-addicted "honorable" oligarch in 1999 or the year one oligarch declared cultural senility via Senior status.
https://www.aclu.org/files/FilesPDFs/nsl_decision.pdf
https://www.aclu.org/technology-and-liberty/supreme-court-and-copa

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