Why the GOP Has to Get Behind Cell-Phone Unlocking

by Derek Satya Khanna

On January 26 of this year, the Librarian of Congress ruled that unlocking a cell phone (making it usable on other carriers) is illegal under the Digital Millennium Copyright Act (DMCA) of 1998. Unbelievably and without real explanation, unlocking your phone to use it on a different carrier than the one from which you bought it could make you liable for up to five years in jail and a $500,000 fine.  

This is an issue that exploded across the Internet, and there’s been a huge amount of momentum in favor of permanently legalizing this technology. There are conservative principles at stake here, and Republicans must lead the charge on this and other smart technology issues, now and in the future.

Republicans care about property rights, small businesses, and innovation. And Republicans are generally concerned about over-criminalization and federal overreach into personal affairs. Republicans have fought regulations that would stifle growth and hurt our fragile economy.

So why are they seemingly silent on technology issues?

First, a bit about the prohibition. The Digital Millennium Copyright Act was passed in 1998 with the worthy goal of defending copyright protections. But it was created before the emergence of the modern media, and has had consequences that Republicans should be particularly concerned about. The DMCA was passed three years before the emergence of the iPod, six years before Google Books, and nine years before the Kindle. Technology moves quickly, and it’s not surprising that the law is now antiquated. But because of the draconian terms of the statute, it now isn’t just a bad bill — it actually restricts entire classes of technology, such as consumer-unlocked cellphones that could spur competition in the wireless market. Consumer groups and affected companies have to fight for exemptions every three years by petitioning the Librarian of Congress to exempt seemingly ordinary technologies from the DMCA’s list of criminal activities.

In this situation, the main trade association for AT&T and Verizon (it also represents other carriers) petitioned successfully to ban unlocking, despite vehement opposition from the group that represents a hundred other wireless carriers, from T-Mobile and Sprint to small businesses and rural carriers. Ultimately, the Librarian of Congress’s decision in favor of the big carriers is precisely the kind of crony capitalism Republicans should, and often do, oppose.

#more#A few companies asked for the law to be changed to their pecuniary benefit, despite the invasion of our property rights, its impact on consumers, and its impact on the overall market. The decision creates higher thresholds to entry for new market participants, which hinders competition and leads to less innovation. And if you can’t change the settings on your own phone, do you even own it?

As a result of this incredible decision, other advocates and I decided to do something about fixing this problem. I wrote several pieces on this issue for The Atlantic that helped turn this into a mainstream issue, explaining just how ridiculous and anti-commonsense it is. Then, working with Sina Khanifar, an entrepreneur whose company was shut down when unlocking became illegal, I launched a White House petition regarding the issue.

On Monday, as a result of our White House petition on cellphone unlocking reaching 114,000 signatures, the first petition to meet the White House’s new, higher threshold for an official response — the White House provided an answer. They came out strongly in favor of unlocking and against the criminal penalties:

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.

I was pleased to see that the White House agreed not only with our petition — as I argued in The Atlantic, it is simply commonsense. Within hours Representative Jason Chaffetz (R., Utah) took the lead on this issue and announced that he is working on legislation to fix this problem:

That’s terrific news, and numerous other members of Congress are also coming out in favor of reform. Based on my experience as a congressional staffer, I can attest that there is serious momentum on the ground for this issue.

This is a terrific issue to help win over the digital generation — support on it from the National College Republicans and Young Americans for Liberty suggests that Republicans should have come out before the White House and pushed this legislation early. But now, Republicans should get on this issue quickly, capitalizing on this momentum and taking the chance to reach out to younger conservatives.

In another Atlantic piece, I laid out my vision of what proper legislation should look like in this area. The current DMCA restricts or bans many common forms of technology, and requires comprehensive reform. I argue that the legislation should permanently legalize the following technologies:

  1. Unlocking and jail-breaking technology for all consumer electronic devices. 
  2. Accessibility technology for people who are deaf or blind, including e-book read-aloud functionality and advanced closed-captioning and video-description features for video programming. (Talk about an easy political issue!)
  3. Technology to back up legally purchased DVDs and Blu-ray discs for personal use.
  4. Computer-science and cryptography research.

These are common-sense, pro-innovation, pro-small business ideas (my Atlantic piece goes into more depth).

Republicans need to get serious about technology reform in a comprehensive way. If we are serious about jobs, innovation, and small businesses in the 21st century, we have to be paying attention to technology. The government has banned broad categories of technologies — and broad categories of uses — without any clear state interest. This is an unacceptable violation of personal freedom — a free society shouldn’t have to petition its government every three years to allow access to such ordinary and common technologies. But further, the innovation we need cannot depend on begging permission from an unelected bureaucrat every three years.

If you are a Republican member of Congress and you support property rights, innovation, and small businesses — this issue is an issue just begging for your support. Run, don’t walk, in this direction.

For more information, please check out www.fixcopyright.com, and follow me on Twitter at @DerekKhanna.