The Obama administration will push to reverse a new prohibition on mobile phone unlocking, after an online White House petition protesting the ban drew more than 100,000 signatures. The ban makes it a federal crime for consumers to “unlock” newly purchased mobile phones in order to use a different wireless network without their current carrier’s permission. Despite the Obama administration’s opposition, however, Congress will most likely need to change federal copyright law for the ban to be reversed.
Public interest groups have opposed the unlocking ban because it frequently means that consumers have to buy new phones if they want to switch networks after their contracts have expired. Unlocking also allows consumers to resell their phones for use on another carrier after their contracts are over, and to use second-hand phones on the carrier of their choice, which may not be the network on which the device was originally activated. These actions are now illegal without the permission of the carrier.
Derek Khanna, a former House Republican Study Committee staffer who is a leading advocate against the ban, argues that it violates the property rights of phone owners. “If you bought a phone then you own it,” Khanna wrote in an email to TIME. “Your contractual relationship with your provider is between you and your provider. But by the federal government coming and saying that unlocking your phone is a federal crime, they are removing your property rights to do what you please with your own device.”
In response to the petition, the Obama administration announced Monday that it believes phone unlocking should be legal. “Neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation,” wrote R. David Edelman, White House Senior Advisor for Internet, Innovation, & Privacy. “This is particularly important for secondhand or other mobile devices that you might buy or receive as a gift, and want to activate on the wireless network that meets your needs — even if it isn’t the one on which the device was first activated. All consumers deserve that flexibility.”
“The Obama Administration would support a range of approaches to addressing this issue, including narrow legislative fixes in the telecommunications space,” Edelman added. The most straight-forward solution is for Congress to amend a narrow slice of federal copyright law, but it’s unclear how realistic that is given the current divided state of the legislative branch.
The White House response represents a victory for Internet-based activists who are challenging entrenched tech, telecom and entertainment interests. Consumer groups hailed the Obama administration’s statement. “In today’s phone unlocking response, the White House took a strong stance in favor of consumers, competition, and innovation,” Sherwin Siy, VP of Legal Affairs at Public Knowledge, said in a statement. “We’re very glad that the administration recognizes the significant problems created when copyright laws tread upon the rights of consumers to use the products they have bought and owned.”
The mobile phone unlocking ban stems from Section 1201 of the Digital Millenium Copyright Act, which states that “no person shall circumvent a technological measure that effectively controls access to a work protected.” As part of that law, Congress gave the Library of Congress the power to issue three-year exemptions to the statute, which it has done since 2006 for mobile phone unlocking.
Last fall, however, Librarian of Congress James H. Billington decided to end the exemption. Billington put in place a 90-day window from the date of the order for consumers to unlock new phones. That window expired on Jan. 26, 2013, meaning that it is now illegal for consumers to unlock new phones without carrier permission. Violation of the rule carries a penalty of up to five years in prison and a $500,000 fine.
Wireless companies argue that locking cell phones is an essential part of the industry’s business model. Typically, the carriers subsidize part of the cost of a new mobile phone in exchange for a long-term commitment from the consumer.
Michael Altschul, senior vice president general counsel for the wireless industry group CTIA, suggested there was no need for the ban to be reversed. “Customers have numerous options when purchasing mobile devices,” he said in a statement. “They may choose to purchase devices at full price with no lock, or at a substantially discounted price—typically hundreds of dollars less than the full price—by signing a contract with a carrier.”
Sina Khanifar, the San Francisco-based entrepreneur behind the petition, said in an email that he’s “really glad to see the White House taking action on an issue that’s clearly very important to people. As the White House said in the response, keeping unlocking legal is really ‘common sense,’ and I’m excited to see them recognizing this.”
Khanifar, the founder of cellular signal database company OpenSignal, is well-versed on this issue. In 2005, he was sent a cease-and-desist letter by Motorola for selling software to unlock the company’s phones. Working with attorney Jennifer Granick, a well-known civil liberties advocate and educator, Khanifar challenged Motorola’s interpretation of the DMCA, and the company eventually dropped its campaign against him.
“I think the real culprit here is Section 1201 of the DMCA, the controversial ‘anti-circumvention’ provision,” Khanifar said. “I discussed with the White House the potential of pushing to have that provision amended or removed, and they want to continue the discussion.”