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:

On Tuesday, Senator Wyden introduced his legislation, the Wireless Device Independence Act. This is a good first step but unfortunately, it does not actually address the problem yet. In its current text, it seems to allow for individuals to unlock their own phones, but it keeps developing, selling, trafficking and discussing the tools and technology of cellphone unlocking still illegal. Without these tools being legalized, unlocking is still effectively illegal.

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:

  1. Carriers can’t actively stop consumers with technological means (unlikely).
  2. Carriers can’t stop consumers (but which doesn’t address manufacturers or others like the DOJ going after you for criminal charges).
  3. 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.

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Comments on “Congress Rushes To Legalize Phone Unlocking; But Existing Bills Need A Lot More Work”

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tomxp411 (profile) says:

Re: Easiest way to legalize phone unlocking

There are actually GOOD parts to the DMCA. The DMCA was far from a one-sided affair. Among other things, it paved the way for Internet radio stations, which we would probably not have today without some of the framework set up in the DMCA.

But I am with you regarding digital locks: a consumer should have the right to reverse-engineer and unlock a device – whether it be a subsidy lock or a bootloader lock. And this right should not be revokable through a private contract.

People don’t seem to realize that a lot of our “rights” are signed away in software EULA’s, including the right to reverse-engineer software. IMO, we need more consumer protection when it comes to EULA’s, First Sale protection, and consumers being forced to give up their rights in order to purchase or use a piece of software.

And yes, I totally think that consumers should have the right to resell digital downloads.

Mason Wheeler (profile) says:

Re: Re: Easiest way to legalize phone unlocking

Please don’t perpetuate that lie. The DMCA did nothing to encourage the growth of the Internet.

Most people, when they talk about the good that the DMCA supposedly did, point to the “Safe Harbor” provision, an Orwellian mis-naming if there ever was one. But the Safe Harbor provision does nothing good for the Internet; all it does is expose sites and service providers to greater restrictions and greater liability in return for a promise of safety that, as we see with the Megaupload case, isn’t worth the paper it’s printed on if the bad guys really want to make you stop causing trouble.

If there had been no Safe Harbor, at some point someone would have sued some website over hosting infringing content. They would have replied with a defense that they operate under Common Carrier doctrine, and have zero liability to do anything whatsoever about the data they handle, and so the plaintiffs can go screw themselves. And they would have won, and it would have set a precedent.

The DMCA took that away from us, and between the “Safe Harbor” and the legitimization of DRM, directly set up every bit of copyright abuse that’s been used against the Internet ever since. There is nothing good about the DMCA, and it needs to be repealed.

Milton Freewater says:

Re: Re: How about this?

“We need to remove all ability of a company to “retain” rights to products we pay them for”

I agree … although in many cases these companiea don’t actually have those rights. They are simply asserting those rights and daring you to prove otherwise at your expense.

A clear congressional statement would stiffen the backbone of the people, for sure.

tomxp411 (profile) says:

Re: How about this?

A bill to that effect would totally have stopped the PS3 “other OS” scandal, wouldn’t it? Except that the EULA’s in place would probably still have had the same result.

What we need is an overhaul of the law regarding EULA’s and companies’ ability to take away rights with clickwrap agreements. IMO, consumers should be held accountable ONLY to Federal Copyright law when it comes to the purchase of software. A company should not be able to add other restrictions to a software’s use, such preventing the program from being resold, through legal or technical means.

If I get bored with an on-line game, I should be able to sell my account, and the developer should not have the right to stop me. If I want to sell an old copy of AutoCAD or OEM copy of an OS, I should be able to.

Mike Masnick (profile) says:

Re: Re: Re:

As far as I’m aware, jailbreaking a phone does not violate the DMCA and so is not illegal.

Jailbreaking is not illegal because it is currently exempted by the Librarian of Congress. That could change — as happened with unlocking.

I believe Derek is saying that we shouldn’t rely on these exemptions, but it should be clear, even without the exemption, that unlocking and jailbreaking are legal activities.

Derek Khanna says:

Re: Re: Re: Re:

Actually, jailbreaking as a technology is still illegal. There is a temporary exception for personal use, but no exception for personal use of jailbreaking an Ipad.

In other words, personal jailbreaking of iPhone is allowed, iPad is not allowed. But the underlying technology, developing, selling, trafficking the technology is still illegal. This is what I’m referring to, a holistic and permanent solution that really legalizes this technology.

Anonymous Coward says:

Do small gains increase or deflate momentum?

I don’t pretend to understand congress psychology. But I find it fascinating to see the opposing views here. Is it better to take advantage of the current congressional motivation and immediately shoot for the moon (e.g. complete dismantling of circumvention provisions in the dmca) and possibly miss, or is it better to gain small victories first. Do the small victories increase congress’s habit of saying yes to us in the future, or do they, in effect, use up our number of wishes? Or is there some sort of balancing act to play there?

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