Cell phone unlocking legal again as president signs measure

You are no longer doing something criminal if you unlock your cell phone.

The president on Friday signed into law a measure that reverses a ban on unlocking that took effect last year. The new law, prosaically dubbed the “Unlocking Consumer Choice and Wireless Competition Act,” will permit consumers to unlock their phones legally until at least 2016, when scheduled new regulations could potentially reinstate the ban.

Backers of the law cheered its enaction, despite the measure’s temporary nature.

“This sends a very strong signal that the American people, Congress and the White House believe this (unlocking) technology is beneficial for the market,” said Derek Khanna, a scholar with Yale Law School’s Information Society Project who helped lead the effort to overturn the unlocking ban.

The new law means that consumers can use programs to remove the software locks that bind cell phones to particular carriers in order to use their phones on other wireless networks. So, a consumer could potentially unlock an AT&T smartphone and use it on T-Mobile or could unlock a T-Mobile device and use it overseas with a foreign carriers’ SIM card. The law also permits companies and other third parties to unlock phones for consumers.

However, the law could become obsolete as soon as 2016. The Librarian of Congress, which imposed the unlocking ban in the first place, is due to review the issue again next year and could issue new rules that would take effect the following year.

The unlocking debate has a long history. In 1998, Congress passed the Digital Millennium Copyright Act in an effort to limit illicit copying of digital works of art. The DMCA made it illegal to break software locks that are designed to prevent copying or manipulating movies, songs, programs or other works. Those convicted of breaking the locks could be fined up to $500,000 and imprisoned for up to 5 years.

However, the law also requires the Librarian of Congress to periodically review potential exemptions to the DMCA. In 2006 and again in 2010, the Librarian approved an exemption to the DMCA that allowed consumers to unlock their phones legally.

But in late 2012, the Librarian, citing the growing number of unlocked phones available on the market, declined to renew the exemption for new phones. Its new rules took effect early last year.

Following that, consumer groups clamored loudly for the exemption to be reinstated. A petition submitted to the White House drew more than 114,000 signatures in about six weeks. President Obama quickly voiced his support for overturning the ban.

In the wake of the protest over the new unlocking ban, the Federal Communications Commission convinced the major cell phone companies to commit to unlocking customers’ phones. But that promise had numerous limitations, most notably that consumers had to have completed their typically two-year subscription agreement before the carriers would agree to unlock their phones. The new law imposes no such limitation; consumers can unlock their phones even before the end of their service agreements.

Still, that doesn’t mean that consumers can simply change carriers willy nilly. Consumers who switch their wireless provider before completing their service agreement are typically are required to pay early termination fees to their original carriers. Meanwhile, many phones simply can’t operate on networks other than the one they are locked, because they don’t support the radio frequencies used by other carriers or those carriers’ underlying technology.

Although cheered by the law’s enactment, consumer advocates said there’s more work to be done on reforming copyright law. The unlocking law itself encourages the Librarian to expand the exemption to include tablets locked to particular carriers. And consumer advocates want Congress to make the current exemption for cell phones permanent.

“It’s not too late for Congress to pass real reform,” said Sina Khanifar, a software entrepreneur who wrote the White House petition.

Both he and Khanna said its time for Congress to take a broader look at copyright law. Companies are using the DMCA’s lock-breaking prohibition to thwart competition rather than protect legitimate works, noted Khanna. For example, Keurig Green Mountain, makers of the widely popular Keurig single-cup coffee maker, has announced that it will put a software lock in its next generation of machines that would prevent consumers from using coffee packets sold by anyone other than the company.

And that could be the tip of the iceberg as more devices get chips in them that could affect their compatibility with other gadgets, Khanna warned.

“If we don’t start to reform (copyright), it’s going impact innovation across the board,” he said.

Photo by Don Ryan, Associated Press.


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