Finally, Congress has before it legislation that would make it permanently legal for you to unlock your phone.
When you unlock your phone, you alter its settings so you can use it with a different carrier. A different though similar adjustment is often referred to as jailbreaking. Both of these technological fixes are simple. They provide substantial utility to the consumer, increase competition in the market, help new market participants to innovate and compete, and represent an extension of a long American tradition of tinkering with gadgets and technology.
While this technology is lawful in the rest of the world, and for good reason, lobbyists realized that it could be effectively banned through an unlikely regulatory agent. The big phone companies successfully lobbied the Librarian of Congress to remove from the Digital Millennium Copyright Act an exception that allowed Americans to use this technology. Now, as a result of DMCA 1201, the anti-circumvention provision of the Digital Millennium Copyright Act, millions of Americans are felons. Competition in the wireless market is diminished, and innovators are going overseas where phone unlocking and device jailbreaking are still legal.
In their focus on preventing competition, the special interests — in particular, the Wireless Association and the large wireless companies AT&T and Verizon — didn’t appreciate that we are in a post-SOPA/PIPA era. Put simply: Their ideas have to pass the smell test or people will respond. The digital generation won’t stand by idly. Frankly, there is a stronger argument for banning the iPod, DVR, and the VCR than there is for banning unlocking. Of course, special interests almost succeeded in banning the iPod, DVR and the VCR — and did succeed in effectively banning the digital audiotape and other inventions.
The bipartisan campaign to legalize phone unlocking and device jailbreaking has met with considerable success. More than 114,000 people signed a petition to the White House, which reversed its position and now supports legalization. The FCC chairman and many members of Congress have announced their support for making unlocking legal. This is a matter not of people vs. corporations but of innovators vs. crony capitalism, as evidenced by the hundreds of wireless carriers that are on board.
In response to this campaign, Representative Zoe Lofgren (D., Calif.) has introduced the Unlocking Technology Act of 2013, with cosponsors Jared Polis (D., Col.), Anna Eshoo (D., Calif.), and Thomas Massie (R., Ky.). This bill would make it legal to unlock phones for personal use and also to develop, sell, and traffic phone-unlocking technology. A consumer who unlocks his phone in order to use a different service provider after his contract has expired, or who has to unlock his phone when using it abroad, will be able to do so without committing a felony punishable by five years in jail and a $500,000 fine.
This legislation would return the Librarian of Congress back to his job of monitoring the nation’s preeminent library rather than deciding what technologies to ban. As I’ve argued elsewhere,
a free society shouldn’t have to petition its government every three years to allow access to technologies that are ordinary and commonplace. A free society should not ban technologies unless there is a truly overwhelming and compelling governmental interest. Congress must act to legalize cellphone unlocking substantively, but then it must legalize other technologies that have been banned without explanation.
The purpose of the Digital Millennium Copyright Act (DMCA) is to protect content holders and prevent piracy. As many who helped write the DMCA agree, and as the Unlocking Technology Act of 2013 recognizes, technologies that do not infringe on that purpose should be lawful. It’s a commonsense and conservative reform that has been endorsed by the National College Republicans, Tea Party Nation, and FreedomWorks. I encourage the technology community to read and discuss this legislation. The House Judiciary Committee should act on it quickly.
Members of Congress who support innovation and the free market should consider co-sponsoring this timely and effective legislation. If members of Congress stand up for conservative principles and free markets and fight crony capitalism, the American people will support them.
— Derek Khanna, a former Republican congressional staffer who has led the campaign on cell-phone unlocking, is a fellow with Yale Law’s Information Society Project and an adviser and board member for several technology startups.