Several prominent lawmakers from both political parties have thrown their support behind legislation to allow consumers to “unlock” their mobile phones, after the White House formally objected to a recent ban on the practice. 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. But the activists behind the grassroots effort to reverse the ban say the proposed bills don’t go far enough to reform the Digital Millenium Copyright Act, the federal law at the heart of the controversy.
The speed with which lawmakers have introduced unlocking bills suggests that they see a winning political issue. Sen. Ron Wyden (D-OR) was first out of the gate with a bill, following an online White House petition protesting the ban that drew more than 100,000 signatures. Wyden’s bill, called the “Wireless Device Independence Act,” would amend the DMCA’s “anti-circumvention” provision (Section 1201) to allow mobile phone unlocking. “You bought it, you should be able to use it,” Sen. Wyden tweeted.
The DMCA 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. But last fall, Librarian of Congress James H. Billington decided to end the exemption. Violation of the rule carries a penalty of up to five years in prison and a $500,000 fine.
Sina Khanifar, the San Francisco-based entrepreneur behind the White House petition, called the Wyden bill a good first step, but said the legislation needs to be clearer about whether it applies to providers of unlocking software, as well as consumers. ”Most people don’t know how to unlock their phones on their own,” Khanifar told TIME in a phone interview. “But I think the Wyden bill is getting very close to getting what is needed.”
On Monday, the Obama administration announced 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,” Edelman added. “All consumers deserve that flexibility.”
Wireless companies argue that locking cell phones is an essential part of the industry’s business model, in which the carriers subsidize part of the cost of a new mobile phone in exchange for a long-term commitment from the consumer. But the unlocking ban could mean 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.
Wyden’s bill was followed by a bill introduced by Sen. Amy Klobuchar (D-Minn.), which takes a different tack, by requiring the Federal Communications Commission to ”permit” wireless subscribers to unlock their devices. Klobuchar’s bill is being co-sponsored by Mike Lee (R-Utah) and Richard Blumenthal (D-Conn.). And Sen. Patrick Leahy (D-VT) has said he will support efforts to reverse the unlocking ban. Meanwhile, Rep. Anna Eshoo (D-Calif.), said she would introduce legislation on the House side.
But it’s unclear what authority the FCC has over the matter. Klobuchar’s bill “fails to address the DMCA entirely, and it doesn’t seem that it does anything to make unlocking more legal,” Khanifar said in an email. “Congress needs to step up and address the root cause of this problem: the DMCA’s anti-circumvention provision.” Khanifar has launched a new website, FixTheDMCA.org, to help mobilize support for the campaign.
Derek Khanna, a former House Republican Study Committee staffer who is a leading advocate against the ban, echoed Khanifar’s reservations about the two Senate bills. He called the Wyden bill a good start, but said it doesn’t go far enough. ”We think the bill should be expanded to legalize the technology needed to unlock phones.” Khanna told TIME. The question for lawmakers, he said, is this: “Are they actually going to solve the problem or just check the box?”
Public Knowledge, a D.C.-based digital rights group, praised the lawmakers who have introduced legislation to address to the phone unlocking issue, but said that federal copyright law itself should be reformed. “The root of this problem lies in parts of the Digital Millennium Copyright Act (‘DMCA’) and how easily they are abused at consumers’ expense,” Public Knowledge Vice President of Government Affairs Christopher Lewis said in a statement. “Amending the DMCA itself will ensure stronger competition, and also that consumers can use the devices they’ve bought in whatever lawful way they choose.”