Congress Passed a Cell-Phone Unlocking Bill. But It Won’t Do Much.

It’s a popular cause, but the legislation is mostly symbolic.

A picture taken on October 12, 2011 in the French western city of Rennes shows (FromL) a Samsung phone, a Blackberry phone and an Iphone 4.
National Journal
Brendan Sasso
July 30, 2014, 11:34 a.m.

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. 

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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