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Unlock Those Cell Phones!
The White House comes out for cell-phone unlocking. Should we?


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Daniel Foster

It’s neither as momentous nor as meritorious as the petition to build the Death Star (which the White House fumbled badly), but the Obama administration has finally found a “We the People” petition it supports that is, well, support-worthy. Namely, cell-phone unlocking. 

Here’s the backstory. In 2005, Sina Khanifar, a physics undergraduate in the U.K., was handed a cease-and-desist letter by Motorola, warning him that he was in violation of the Digital Millenium Copyright Act because he had written code that circumvented propriety “locks” on cell phones, locks that prevented customers from using phones in ways contrary to their manufacturer’s wishes. The DMCA was intended to stop hackers from getting around Digital Rights Management (DRM) software that individuals and corporations use to protect copyrights on, for instance, digital music and video. But Khanifar had written the code for an entirely different reason: so that he could use an American phone that he owned on a British wireless network he paid for. And because he had started to sell his code so that others could do the same, he was being threatened with five years in prison and hundreds of thousands in fines.

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Khanifar was approached by a pro-bono cyber-law clinician from Stanford University and with her counsel, he challenged Motorola’s broad interpretation of the DMCA and successfully fended off a lawsuit. In the years since, the case law on DMCA has been mixed. Some courts have found Motorola-style interpretations overbroad, while others have found that the inclusion of an end-user license agreement in a sale, no matter how restrictive, could effectively render it criminal for individuals to use products they own in ways their manufacturers disapprove of. 

The confusion led the Library of Congress, which has broad powers to enforce copyright law, to grant an exemption for cell-phone unlocking in 2006. But the Library of Congress bizarrely rescinded that exemption in January of this year, and unlocking is now allowed only with the permission of the wireless carrier from which the phone was originally purchased. So Khanifar started a petition at the White House website, and with the help of people such as Derek Khanna, a Yale law fellow and former GOP Hill staffer who has long evangelized for unlocking, it eventually garnered more than 100,000 signatures.

And now, a White House response. After powwowing with telecoms and copyright types, White House “Senior Advisor on Internet, Innovation, and Privacy” R. David Edelman has released a memo utlining the administration’s stance:

The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. It’s common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers’ needs.

The “if” in the statement is important. Casual observers might think that what is at stake in the unlocking debate is whether consumers have the right to violate the terms of a contract they signed. But the broad interpretation of Section 1201 — the DMCA provision that prevents circumvention of DRM — goes beyond that, potentially criminalizing consumer choices that have nothing to do with contracts.  

“If you have a contract with your provider, that’s between you and your provider,” Khanna says. “But what has happened here is that the federal government is jumping in and saying, ‘If you unlock your phone even after your contract has expired, you are breaking the law.’” 

And that is something conservatives should be concerned about.

“Anyone leaning right will agree that Section 1201 of the DMCA is a terrible piece of legislation,” Khanifar says.

Khanna focuses his fire not on the legislation itself, but on the Library of Congress’s interpretation of it, which he calls “a complete violation of property rights and a really great example of crony capitalism.”

Both say that the decision benefits the bottom lines of major carriers while hurting consumers and raising barriers to entry for smaller wireless companies.

So what does having the White House on board mean? Potentially, not all that much. Edelman’s memo states that the administration “would encourage” mobile providers to take voluntary steps to “ensure that their customers can fully reap the benefits and features they expect when purchasing their devices.” It mentions that the FCC has a role to play. And it says the administration would support “narrow legislative fixes.” But it doesn’t offer much in the way of an action plan.

Khanna, who called the memo a “terrific first step,” nevertheless says that there is more to be done, and that Republicans should take the lead. “It’s going to require congressional action to fix this problem. I can’t tell you what the coalition is going to look like, [but] if you are a GOP member of Congress, your constituents have signed on to this petition. And if you say you believe in helping promote small businesses, this issue is staring at you. It really is a ideologically conservative idea but also a political winner.” 

— Daniel Foster is news editor of National Review Online.



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