Legislation to allow people to “unlock” their cell phones won unanimous support on Capitol Hill and is about to become law. But the bill won’t have much practical effect for most people.
Cell-phone carriers already agreed to a voluntary unlocking policy, and the law will only be relevant until the Copyright Office issues new rules on the issue next year.
Supporters admit the bill is narrow but say it is still a significant step forward for consumer rights. They argue the bill is also important symbolically and could lay the groundwork for future reforms to copyright laws.
What Is Cell-Phone Unlocking?
Many cell phones come “locked” to a particular network. Unlocking a cell phone allows the owner to switch providers without buying a new phone.
Under the Digital Millennium Copyright Act, it is illegal to circumvent a “technological measure” to access a copyrighted work. Every three years, the Copyright Office grants exemptions to that rule.
In previous reviews, the Copyright Office had granted an exemption for cell-phone unlocking, allowing people to switch to a new network as long as they had completed their old contract. But the office didn’t renew the exemption in its 2012 review, making the practice illegal.
Cell-phone unlocking had been a relatively obscure issue, but the Copyright Office’s ruling prompted a major backlash. More than 114,000 people signed a White House petition in protest. They felt that if they bought a device, they should be able to use it however they wanted.
The White House responded to the petition, saying the administration agreed that “consumers should be able to unlock their cell phones without risking criminal or other penalties.”
Suddenly, lawmakers on both sides of the aisle were racing to introduce their own bills to legalize cell-phone unlocking. A bill from Rep. Zoe Lofgren, a California Democrat, would have amended the underlying copyright law to make it permanently legal to unlock cell phones and other devices.
The Law Is Only a Temporary Fix
Congress ultimately opted for a narrower approach.
The bill that President Obama is about to sign only overturns the Copyright Office’s 2012 ruling on cell-phone unlocking. The office is expected to begin the review again later this year and issue new rules sometime next year.
Although it’s unlikely, there’s nothing in the bill to stop the Copyright Office from reinstating the ban.
An act of Congress is a forceful statement to the Copyright Office, but the White House’s original response to the online petition more than a year ago alone would have put serious pressure on the office to reverse itself in its next rules.
Carriers Will Already Unlock Phones
After the controversy exploded, Federal Communications Commission Chairman Tom Wheeler warned cell-phone carriers that he would consider enacting new regulations unless the companies adopted an unlocking policy.
The cellular carriers then all agreed to a code of conduct promising to unlock their customers’ phones after their contracts had expired. The carriers also agreed to unlock prepaid phones one year after activation.
Wheeler issued a statement at the time applauding the carriers for agreeing to a “solution” to the problem. He also promised tough oversight to ensure the carriers stuck to their promise.
You Can’t Even Switch Between All Carriers
Cell-phone unlocking may become legal, but that doesn’t mean it’ll always be possible to switch carriers.
Some carriers rely on different technologies than others, meaning that some phones will only work on certain networks. So, an AT&T customer who completes her contact and wants to switch to Sprint might have to buy a new phone no matter what.
“Unlocked phones are not the same as interoperable phones, and it would be a mistake to conflate the two,” Michael Altschul, the general counsel for cell-phone lobbying group CTIA, testified during a House hearing last year.
Supporters of the bill argue that those obstacles are becoming less and less relevant due to technological advances. Soon, new phones may be able to work on all networks.
So What Was the Point?
Christopher Lewis, a lobbyist for consumer group Public Knowledge, acknowledged that the bill is “really, really narrowly focused.”
Groups like Public Knowledge and the Electronic Frontier Foundation had lobbied for broader legislation to reform copyright law and prevent future fights over unlocking devices. But Lewis said it was important to compromise to reverse the Copyright Office’s ruling as quickly as possible.
He pointed out that the bill is broader than the industry agreement in at least one important respect: It allows third parties to unlock phones. The cell-phone carriers had only promised to unlock the phones for their customers, but the bill allows people to unlock the phones themselves or have someone else do it for them.
Lewis also said it was an important victory for an online petition on copyright to prompt action from the White House and Congress. A White House spokesman said it is apparently the first time the White House’s online petition site has actually led to a legislative change.
Senate Judiciary Committee aides who helped write the bill argued that it has much more weight than just the White House statement in response to the petition. The Copyright Office will likely be more deferential to united action from both chambers and the White House when it reviews its rules, the aides argued.
Lewis said consumer groups now have the momentum to make other changes to loosen copyright law. He argued that consumers should also be able to bypass software locks to tinker with tablets, e-books, and even cars.
“People understand the need for individuals to use their phone however they want,” Lewis said. “Does that ability to tinker with things you own apply for other objects? We believe it does, and that’s what the broader discussion will be about.”
The House Judiciary Committee is expected to hold a hearing on “circumvention” issues as part of its broader review of copyright law.
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