Bill to Legalize Cell-Phone Unlocking Set for House Vote

A Blackberry cell phone is seen at Fixx wireless on November 4, 2013 in Miami, Florida.
National Journal
Brendan Sasso
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Brendan Sasso
Feb. 25, 2014, midnight

The House is ex­pec­ted to vote on le­gis­la­tion Tues­day that would make it easi­er for people to switch cel­lu­lar pro­viders without buy­ing a new phone.

Un­der cur­rent law, people who “un­lock” their phones to switch pro­viders could face thou­sands of dol­lars in fines and — if they tried to profit from the device — even jail time.

H.R. 1123, the Un­lock­ing Con­sumer Choice and Wire­less Com­pet­i­tion Act, had broad bi­par­tis­an sup­port when it cleared the House Ju­di­ciary Com­mit­tee by a voice vote last year. But two Sil­ic­on Val­ley Demo­crats, Zoe Lof­gren and Anna Eshoo, are now mount­ing a last-minute bid to kill the le­gis­la­tion, say­ing the latest ver­sion doesn’t go far enough to pro­tect con­sumers.

Be­cause the bill is be­ing brought to the floor un­der an ex­ped­ited pro­cess, it will need a two-thirds vote to pass.

Most con­tract cell phones come “locked” to one car­ri­er. Be­cause of a de­cision by the Lib­rary of Con­gress in 2012, cus­tom­ers must ob­tain their car­ri­er’s per­mis­sion to leg­ally un­lock their phones to switch to a com­pet­it­or — even after they have com­pleted their con­tract.

The de­cision was based on the Di­git­al Mil­len­ni­um Copy­right Act (DMCA), which bans people from cir­cum­vent­ing a “tech­no­lo­gic­al meas­ure” to gain ac­cess to a copy­righted work. The lib­rary had ex­emp­ted cell-phone un­lock­ing from the DMCA’s re­stric­tions in 2006 and 2010.

The lib­rary’s 2012 de­cision to ban cell-phone un­lock­ing promp­ted an im­me­di­ate pub­lic back­lash, and more than 114,000 people signed a White House pe­ti­tion in protest.

Sup­port­ers of cell-phone un­lock­ing say it pro­motes com­pet­i­tion and that con­sumers should be able to do what they want with the devices they own.

Last year, Fed­er­al Com­mu­nic­a­tions Com­mis­sion Chair­man Tom Wheel­er pres­sured the car­ri­ers to sign on to a new un­lock­ing policy. Un­der the threat of new reg­u­la­tions, the ma­jor pro­viders all agreed to un­lock their cus­tom­ers’ phones upon re­quest.

But the new policy doesn’t pro­tect con­sumers who want to un­lock their phones on their own. People who want to tinker with their devices could still face steep fines un­der the cur­rent law.

H.R. 1123, which is au­thored by Re­pub­lic­an House Ju­di­ciary Com­mit­tee Chair­man Bob Good­latte, would over­turn the lib­rary’s de­cision and leg­al­ize cell-phone un­lock­ing.

But the latest ver­sion of Good­latte’s bill would not pro­tect people who un­lock phones in large batches. That pro­vi­sion promp­ted con­sumer-ad­vocacy groups Pub­lic Know­ledge and the Elec­tron­ic Fron­ti­er Found­a­tion to drop their sup­port. Those groups had al­ways pre­ferred le­gis­la­tion that would amend the un­der­ly­ing copy­right law in­stead of simply over­turn­ing the lib­rary’s de­cision.

Reps. Lof­gren and Eshoo began ral­ly­ing op­pos­i­tion to the bill on Monday and ac­cused Good­latte of adding the pro­vi­sion in “secret.”

“We urge a no vote on the Un­lock­ing Con­sumer Choice Act (H.R.1123) so that, in the fu­ture, we can de­vel­op con­sensus for le­gis­la­tion that provides real pro­tec­tion for con­sumers, pro­motes com­pet­i­tion, and un­locks in­nov­a­tion,” they wrote in a let­ter to oth­er law­makers.

But the bill still has sup­port from top Demo­crats in­clud­ing Rep. John Con­yers, the rank­ing mem­ber of the Ju­di­ciary Com­mit­tee, and Jer­rold Nadler, the rank­ing mem­ber of the in­tel­lec­tu­al prop­erty sub­com­mit­tee.

Aman­da Walk­er, a spokes­wo­man for Good­latte, said the bill is still ex­pec­ted to reach the floor on Tues­day des­pite the last-ditch op­pos­i­tion. 

CTIA, the lob­by­ing as­so­ci­ation for cel­lu­lar car­ri­ers, is quick to note that un­lock­ing a phone does not mean it will op­er­ate on any net­work. Tech­no­lo­gic­al bar­ri­ers could still pre­vent some cus­tom­ers from switch­ing their devices between cer­tain net­works.

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