Congress Rushes To Legalize Phone Unlocking; But Existing Bills Need A Lot More Work
from the the-view-from-capitol-hill dept
Well, what a difference 114,000 signatures, a Presidential endorsement, and an FCC investigation make! As a lead activist on this issue, I can say that on Capitol Hill there has been a significant sea change on the issue of cellphone unlocking. Numerous Republicans and Democrats have come out publicly in favor of unlocking and against the criminal penalties at hand. On Monday, only a few hours after the Presidential endorsement of unlocking, we heard from Rep. Chaffetz that he was working on legislation — through him tweeting:
Working on leg to unlock your mobile phones.It is a freedom issue.You own the phone, you should be able to unlock it. .@derekkhanna
— Jason Chaffetz (@jasoninthehouse) March 5, 2013
Also on Tuesday we heard from numerous Members of Congress that they support legalizing unlocking, including Rep. Darrell Issa and Rep. Jarred Polis. Additionally, there was a statement by Senator Patrick Leahy that was seen by many as giving a green light to other Democrats to endorse the legislation. Sen. Leahy, Chairman of the Judiciary committee, released this statement:
“I intend to work in a bipartisan, bicameral fashion to restore users’ ability to unlock their phones and provide them with the choice and freedom that we have all come to expect in the digital era,”
Then on Thursday, Senator Amy Klobochar, Senator Richard Blumenthal and Senator Mike Lee introduced the Wireless Consumer Choice Act (and Rep. Anna Eshoo is expected to introduce companion legislation in House).
From Senator Lee:
“Consumers shouldn’t have to fear criminal charges if they want to unlock their cell phones and switch carriers… Enhanced competition among wireless services is the surest way to increase consumer welfare.”
This statement is confusing as it is supposed to be about this bill – but that’s not actually what the Wireless Consumer Choice Act DOES.
The actual text of the Wireless Consumer Choice Act says that: “[the FCC] shall direct providers of commercial mobile services and commercial mobile data services to permit the subscribers of such services, or the agent of such subscribers, to unlock any type of wireless device used to access such services.” This is quite a confusing bill text. Here are a few problems. What does permit mean in this context? Is it:
- Carriers can’t actively stop consumers with technological means (unlikely).
- Carriers can’t stop consumers (but which doesn’t address manufacturers or others like the DOJ going after you for criminal charges).
- Facilitate the unlocking by providing the codes upon request? Would they have to give the codes even if you are in contract to not unlock? Doesn’t permit mean you are required to period?
The one thing we know for a fact is that “permit” doesn’t have anything to do with adjusting their contractual terms to “allow” for consumers to unlock under their contract (all legislation appears to have a clause asked for by CTIA that it won’t touch existing contract law). Essentially, this legislation says that the wireless companies can’t enforce Section 1201 of the DMCA.
But that doesn’t protect against the manufacturers like Apple, HTC, etc. coming after users (as was the case for Sina Khanifar, who joined me on the activism campaign for unlocking). And it doesn’t protect against the criminal provisions, which would require another law. So since it has nothing to do with criminal law, it’s confusing as to why Sen. Lee’s statement would be about criminal law; however, it appears that he may introduce new, supplemental legislation that specifically deals with the criminal provisions as well.
Ok, so we are now at a total of two introduced bills.
Lastly, and perhaps most promising, as mentioned at the top, it appears that Rep. Jason Chaffetz is working on legislation and expected to target the unlocking criminal penalties, like Senator Wyden’s bill, but Rep. Chaffetz’ bill appears to be seriously considering doing so in an inclusive manner to also legalize the tools. In legalizing developing the tools, trafficking, selling and using the tools, such a bill would be the first real bill to actually make unlocking lawful.
Just to be clear, legislation goes through a process, and these bills will be revised and go through a committee. These committee hearings may be one of the first times that Congress has discussed some of the issues with the DMCA in the recent past. It’s really pretty incredible that they haven’t even held oversight hearings.
Unfortunately, none of the bills under consideration or under discussion appear to include anything beyond unlocking. They do not include anything to allow for accessibility technology for persons who are blind or deaf, allow for jailbreaking, or allow for computer science research. These issues will require additional activism and engagement to get them on the table.
If a narrow bill passes on unlocking, instead of taking on more substantive reforms, it is my intention to next lead a targeted campaign on accessibility technologies. There is no legitimate governmental reason for keeping these accessibility technologies illegal — and we cannot continue to deny persons who are deaf and blind technology that can help them because a law was written before modern technology, outlawing them by default.
Today is just over two months since my last day on Capitol Hill — and in those two months I have seen the anti-SOPA coalition accomplish their first forays in actively passing positive legislation. These may seem like small victories, but as I discuss in my piece for Boing Boing, these are small, strategic, affirmative victories that will culminate in even greater action. I encourage people to stay involved and continue to reach out to their Members of Congress on this issue. It’s up to us to ensure that they actually fix the problem, as opposed to just checking the box.
Update: This afternoon we find out that Rep. Goodlatte, House Judiciary Committee Chairman, will be introducing a bipartisan bill with Ranking Member Rep. Conyers on this issue — but it’s unclear what they have in mind. Let’s hope that Goodlatte’s bill actually solves the problem by including legalizing the tools permanently — rather than a check the box approach. But Goodlatte was also an original sponsor of the Stop Online Piracy Act (SOPA) so we will have to see their approach. The worst check the box approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary “exception” for three years and let the Librarian rule on this again in three years. That would keep the underlying technology illegal but also require the same triennial review process, that has failed here, to ask permission. That would be truly unacceptable.