Dumb Laws

02.20.13

It's Your Phone, Why Can't You Unlock It?

Video screenshot

Did you know it is now illegal to unlock a cell phone that you have purchased from your wireless carrier?

A petition to the White House needs roughly 13,000 signatures more by Saturday (February 23rd) to garner an official response. (It can be signed here.)

At issue is the Librarian of Congress' decision last October to end an exemption in federal copyright law for cellphone unlocking. Under the 1998 Digital Millennium Copyright Act [DMCA], it's illegal to circumvent electronic locks that protect a copyrighted work. The law called on the Librarian of Congress to grant exemptions every three years as needed to let people make non-infringing uses of such works, and such exemptions were granted for cellphone unlocking in 2006 and 2010. But prodded by the head of the Copyright Office, the Librarian reversed course last year, finding that people who wanted to unlock their phones could do so by asking their phone company for permission.

While the original intent of the DMCA was to protect copyrighted media from being pirated, the vague wording of the legislation allowed cell phone manufacturers and carriers use the law as a way to prevent users and businesses from unlocking cell phones, citing ‘software infringement.’

James Baldinger, a lawyer for TracFone and many cell phone carriers, claims that

"[The carriers] are concerned about traffickers that steal subsidies and in the end increase the cost of wireless for consumers across the United States.”

The decision by unelected officials to not extend the exemption has drawn bipartisan criticism. The Los Angeles Times' editorial board wrote that,

"It's hard to see the connection between the locks and the software creators that copyright law were supposed to protect." The board added, "Clearly, the point of the locks isn't to protect Apple, Google and other creators of copyrighted phone software; it's to protect the phone companies' revenue streams."

Derek Khanna (@dkhanna11 on Twitter), a former policy staffer for the House Republican Study Committee debunks this notion of ‘phone subsidies’ in The Atlantic. He calls this debate “a story of crony-capitalism” that violates “our most basic and fundamental of freedoms”

Some have argued that prohibiting unlocking phones is important to enforce contract law. But the DMCA is concerned with protecting copyrights. It has nothing to do with enforcing contract law. The law is being co-opted to serve the interests of one or two phone companies. And the contract argument is specious, even if you unlock your phone, you are still under contract with your cellphone provider, unlocking your phone has nothing to do with contract law and everything to do with basic property rights.

We must ask ourselves: "What specific limitations upon our personal freedom and liberty are we prepared to accept in the name of achieving the goal of protecting intellectual property?"

Sina Khanifar, who in 2005 fought Motorola on this DMCA issue, furthers this claim, citing other electronics that allow these modifications to be made.

Intuitively we understand that once we’ve purchased a product it’s up to us how we use or modify it. Replacing the hard drive on a Macbook may invalidate our warranty, but it isn’t, and shouldn’t be, illegal.

Maybe we should just revert back to the days of the Ma Bell monopoly and start leasing our phones again?