It will be interesting to watch how the issue of unlocking smartphones and other cell phones plays out over the remainder of the year.
Reprogramming – or unlocking – a smartphone or cell phone enables it to run on a network other than the one for which it was intended. As of late January, the Librarian of Congress ruled that such an action is illegal and can be punished by a five-year jail term and a $500,000 fine.
Forbes’ Derek Khanna explains that the Digital Millennium Copyright Act (DMCA), which was passed in 1998, outlawed technologies that “bypass copyright protections.” The DMCA empowered the Librarian of Congress (LoC) to grant exemptions. Late last year, the LoC for the first time didn’t renew exemption and, when Congress didn’t act, unlocking phones became illegal.
The change in the legal status of unlocking phones caused what TechCrunch termed an “online uproar.” Indeed, a White House petition has reached the 100,000-signature threshold. Under its “We the People” initiative, the Obama administration will respond to the petition.
Julius Genachowski, the chairman of the Federal Communications Commission (FCC), said that the matter will be investigated. This seems to be a separate effort than the “We the People” petition. It also seems to be a bit tentative. This paragraph suggests that “if” the FCC has authority, it is “likely” he will pull some strings:
Genachowski isn’t sure what authority he has, but if he finds any, given the tone of the conversation, it’s likely he will exert his influence to reverse the decision. “It’s something that we will look at the FCC to see if we can and should enable consumers to use unlocked phones.”
That’s hardly reassuring to those fighting the new rules. The New York Times posted a good backgrounder on the topic when it became clear that the exemption would not be renewed. The story gave fair space to the rationale of the mobile phone companies and the CTIA trade group, which are against the exemptions’ renewal.
The story quoted a CTIA spokesperson who said that the rationale for disallowing unlocking starts with the subsidization of phones in the U.S. If unlocking is legal, a person could buy a subsidized phone customized to one network, unlock it and resell it at a profit. Along the same lines, unlocking makes the sale of stolen phones easier. The stolen phones may be contaminated by the thieves with software that steals the buyers’ personal information.
Those points weren’t accepted by the pro-unlocking side, of course:
Some consumer advocacy groups have a different point of view. Mitch Stoltz, a lawyer at the Electronic Frontier Foundation, a digital rights nonprofit company, said the copyright act, which was designed to make it illegal to circumvent protections for copyrighted works, had repeatedly been misused by technology companies to protect their businesses. He said the removal of the exemption for unlocking cellphones might discourage people from wanting to sell their own phone to another person after they have bought a new one.
It’s interesting that the Times story doesn’t actually cite instances in which unlocked phones led to losses to the companies subsidizing their purchase or proved dangerous. It also is interesting that another key rationale for keeping phones locked is not mentioned. Carriers generally want phones locked so that they can tightly control security and usage parameters on their networks.
This will not fade away. Of course, there are significant practical and pragmatic ramifications of how the locking issue is resolved. At the same time, there is a philosophical angle as well: Does a consumer fully own the phone that he or she buys, or does ultimate control – and therefore some element of ownership – remain in the hands of the carrier?