White House Says Mobile Phone Unlocking Should Be Legal

from the so-now-what dept

Mon, Mar 4th 2013 10:46am — Mike Masnick

Well, that was amazingly fast. The White House has already responded to the petition concerning unlocking mobile phones, and said that mobile phone unlocking should be legal. If you don't remember, the Librarian of Congress (who technically is a part of the executive branch, working for the President) decided to remove the DMCA exemption for mobile phone unlocking, turning it into a possible copyright infringement risk. There was plenty of outrage, which led to a White House petition getting the necessary 100,000 votes.

The White House has quickly sided with the petitioners:

The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network. It's common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs.

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 White House's response also points to the initial filing done by the Commerce Department's National Telecommunications and Information Administration (NTIA), which had actually filed in support of keeping the exemption for mobile phone unlocking during the triennial review process. Unfortunately, the Librarian of Congress decided not to follow that recommendation.

So, now what? The White House seems open to having Congress fix the problem, but also seems to think that the FCC may be able to fix it as well, which is probably why the FCC started claiming it would investigate the situation last week.

The Obama Administration would support a range of approaches to addressing this issue, including narrow legislative fixes in the telecommunications space that make it clear: 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.

We also believe the Federal Communications Commission (FCC), with its responsibility for promoting mobile competition and innovation, has an important role to play here. FCC Chairman Genachowski today voiced his concern about mobile phone unlocking (.pdf), and to complement his efforts, NTIA will be formally engaging with the FCC as it addresses this urgent issue.

Finally, we would encourage mobile providers to consider what steps they as businesses can take to ensure that their customers can fully reap the benefits and features they expect when purchasing their devices.

This is definitely a victory for those of us who are against the overreach on copyright, though there is still a ways to go. We haven't actually seen the problem get fixed yet, just that the White House is supporting fixing the issue.

Separately, it's a bit disappointing that the White House focused on narrowly targeting just this particular problem, rather than recognizing that this is just a symptom of the broken DMCA anti-circumvention setup. A truly bold statement would have been to go even further and recognize that the law itself is broken. Passing a "narrow legislative fix in the telecommunications space" just duct tapes on a way to attack this particular symptom of the broken system, but does nothing to attack the disease at the root of it.

Derek Khanna, who helped lead the charge on this petition and has rallied support behind this issue, says that this is a success that should be celebrated. In a statement to Techdirt, he noted:

This is terrific news. It shows the power of the people to affirmatively act to fix policy rather than just stop bad policy. We the people have this power when we come together to fight for positive, common-sense solutions. This is a major affirmative victory for the digital generation that stood up against censorship of the internet through SOPA a year ago. The work of this movement is not done, now Congress must follow through -- and it will require continued activism and engagement from average people who made this possible.

A free society should not require its citizens to petition their government every three years to allow access to technologies that are ordinary and commonplace. Innovation cannot depend upon a permission-based rulemakings requiring approval every three years from an unelected bureaucrat. A free society should not ban technologies unless there is a truly overwhelming and compelling governmental interest

I agree that this is a "narrow" victory, but again I worry about the White House just looking to duct tape up a solution to this one issue, rather than looking at what caused this problem in the first place.

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Filed Under: activism, commerce department, dmca, exemptions, librarian of congress, mobile phones, ntia, petition, unlocking, white house

33 Comments

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Twirrim, 4 Mar 2013 @ 10:57am

"...ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs."

Oh Whitehouse, you so funny!
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Atkray (profile), 4 Mar 2013 @ 11:01am

New Gig
So either Derek Khanna has a new job or someone else is about to experience what he did.
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Grumpy, 4 Mar 2013 @ 11:08am

What should be illegal is locking the phones in the first place by the phone companies.
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- Mason Wheeler (profile), 4 Mar 2013 @ 11:19am
  
  Re:
  Exactly. And if it weren't for the DMCA, that would be the case. Without the DMCA legitimizing DRM technology, it would be regarded exactly the same as any other act that forcibly takes control of a computer away from its owner, against the owner's will and against their interests.
  
  In any other context, we call that hacking, and it's illegal. But the DMCA turns law and common sense on their heads. Now the hackers have a legal right to hack you, but if you exercise your natural right to control over your own property, you are violating the law.
  
  If copyright abuse is ever to be reined in, as opposed to simply playing a neverending game of whack-a-mole with new attempts to make things worse, it will have to begin by repealing the DMCA.
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Anonymous Coward, 4 Mar 2013 @ 11:08am

why should consumer choice be limited to only wireless items? dont all consumer purchases deserve the same consideration? why, for example, should consumers not be allowed to sell games they no longer want or buy pre-owned games? the ridiculousness of the excuses put out by the likes of the entertainment industries, publishers etc are the ones that instigate piracy by limiting what people can do with their legally owned items. the mobile phone and tablet unlocking should be re-legalised but other markets need to be brought into the frame as well and quickly!
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- nasch (profile), 4 Mar 2013 @ 3:40pm
  
  Re:
  why, for example, should consumers not be allowed to sell games they no longer want or buy pre-owned games?
  
  They can; I've done both.
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  - Anonymous Coward, 5 Mar 2013 @ 12:32am
    
    Re: Re:
    try doing it with a pc game and see how far you get. Or one of EAs titles with multiplayer.
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    - Anonymous Coward, 5 Mar 2013 @ 5:47am
      
      Re: Re: Re:
      leaving aside the question of game publishers introducing thongs to prevent used games being used fully (I agree they shouldn't) there is a simple reason why most stores don't like buying used PC games from consumers- too often, people rip a copy of the CD, keeping the original. That's a business decision, and is, and should remain, legal.
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Ima Fish (profile), 4 Mar 2013 @ 11:13am

The purpose of copyright should not be to protect business models. That's what this whole BS is about. Mobile carriers wanting to squeeze a little more of it customers. Keeping people from unlocking their purchased phones has NOTHING to do with promoting the progress of science and useful arts.
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Wally (profile), 4 Mar 2013 @ 11:25am

Where Have I Seen This Before??
"We also believe the Federal Communications Commission (FCC), with its responsibility for promoting mobile competition and innovation, has an important role to play here. FCC Chairman Genachowski today voiced his concern about mobile phone unlocking (.pdf), and to complement his efforts, NTIA will be formally engaging with the FCC as it addresses this urgent issue."

Oh that's right..."work" with the telcoes to promote "competition".......the poor bastards don't know whom they are dealing with. Ask Edwin H. Armstrong about how he got screwed over the last time a telco CEO (David Sarnoff of RCA Radio Corp.) bargained/lobbied with the FCC. It involved changing the FM Radio frequency range from 42-50MHz on the spectrum, to 88-108Mhz...after which all Armstrong device radios became useless.
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Anonymous Coward, 4 Mar 2013 @ 11:29am

The underlying problem, that the government is exercising control over people, is one that directly benefits the people in charge of overseeing the government...itself. Hence, this sort of problem will always exist.

To paraphrase: There is no conflict of interest for the administration...this fits their interests perfectly.
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jameshogg (profile), 4 Mar 2013 @ 11:31am

Typical intellectual property nonsense - it always stamps on physical property rights.
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Ninja (profile), 4 Mar 2013 @ 11:38am

Interesting. They rose the threshold to get the petitions signed but this move actually gives much more weight to the petitions that manage to surpass that magic barrier. Fascinating.
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Anonymous Coward, 4 Mar 2013 @ 11:42am

I didn't see any reference to 'copyright' in the WH statement. I see no indication at all that they considered this issue a copyright issue.
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- John Fenderson (profile), 4 Mar 2013 @ 1:09pm
  
  Re:
  DMCA is copyright law.
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- Anonymous Coward, 4 Mar 2013 @ 1:14pm
  
  Re:
  *looks around with shifty eyes*
  
  Are you smoking crack?
  
  "For more context and information on the technical aspects of the issue, you can review the NTIA's letter to the Library of Congress' Register of Copyrights (.pdf), voicing strong support for maintaining the previous exception to the Digital Millennium Copyright Act (DMCA) for cell phone carrier unlocking."
  
  The only thing I take objection to that everyone is bypassing when reading...
  
  "And if you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network. "
  
  That's what some of the ruckus is about....the whole 'being bound by service agreement' thing. What should it matter what device you are using to access their services? Why should it matter than you decide to unlock the phone....MOST OF THE TIME YOU WILL REPLACE IT WITH A DIFFERENT DEVICE....unless you like paying for the early termination fees....
  
  The White House didn't agree to unlocking unless you were out of contract. That's BS and we all know it.
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  - John Fenderson (profile), 4 Mar 2013 @ 1:31pm
    
    Re: Re:
    Good point. The carrier's argument is that they need to recoup the money for the subsidized phones, but this is more properly done with early termination fees. Indeed, the entire rationale for ETFs is to make sure the carriers can recoup.
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    - Anonymous Coward, 5 Mar 2013 @ 5:54am
      
      Re: Re: Re:
      Unlocking allows you to use a Sim card from any carrier, IIRC. The point of keeping a phone locked while you are under contract is to prevent you from putting another Sim card in the phone then refusing to pay the monthly fee, while not paying early termination fees. That's a breach of contract issue, and the WH is reluctant to interfere. therefore, unlocking should be legal once the contract is over.
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      - John Fenderson (profile), 5 Mar 2013 @ 7:33am
        
        Re: Re: Re: Re:
        Unlocking should be legal even when the contract isn't over. We have existing ways of handling contract breaches. There is no need or rational reason for abusing copyright law as a new mechanism to enforce contract law. Enforcement of cellphone contracts has nothing to do with enforcement of copyright.
        
        This is pure abuse of the DMCA.
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- Mike Masnick (profile), 4 Mar 2013 @ 4:19pm
  
  Re:
  I didn't see any reference to 'copyright' in the WH statement. I see no indication at all that they considered this issue a copyright issue.
  
  That is why the WH's response is pretty flawed. This is only a copyright issue. To suggest it be solved by telco law is just weird...
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  - Derek Kerton (profile), 5 Mar 2013 @ 7:00am
    
    SIM locks should be outlawed
    Mike,
    
    You are correct...partly.
    
    The current battle to allow unlocking by petitioning the White House and Librarian of Congress for an exemption to the DMCA is most def a copyright issue. But that's not the real problem.
    
    The real issue is: "Why are the telcos allowed to lock our phones in the first place?" and that's a telecom issue. The very absurdity of being legally "allowed" to unlock our own property, but needing to ask the telco for the keys is preposterous (although their are hacker methods to unlock, most people just call their telco to request the keys, and they oblige under certain conditions that *they* deem fit).
    
    Now, I'm usually the telco apologist on Techdirt, but in this case, there is no fair way the telcos can both foist Early Termination Fees and contracts on customers AND lock phones.
    
    This practice diminishes the resale value of our equipment, and is an environmental issue, as more used and locked phones are tossed in a drawer for 3 years, then tossed in a landfill when deemed too old. Re-use would limit environmental impact.
    
    I like the example of Belgium, where SIM-locking cellphones has been illegal for almost a decade. If their government is serving the citizen, whose is ours serving?
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Ray Trygstad (profile), 4 Mar 2013 @ 12:23pm

Librarian of Congress is part of the LEGISLATIVE Branch
The Librarian of Congress does not work for the President and IS NOT part of the Executive Branch. The President appoints the Librarian of Congress but the Library is a part of the Legislative Branch and always has been; their budget is not a part of the budget proposed to Congress by the President but rather are submitted as Congressional Budget Justifications directly to the Congressional Appropriations Subcommittee for the Legislative Branch. The Librarian is responsible to the Congressional Joint Committee on the Library.
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- txpatriot, 5 Mar 2013 @ 12:39pm
  
  Re: Librarian of Congress is part of the LEGISLATIVE Branch
  Never let the facts get in the way of a good rant.
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Anonymous Coward, 4 Mar 2013 @ 12:26pm

Isn't it time to have a look at the financial situation of the librarian of congress, if only to see who it was who paid for this?
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Mr. Applegate, 4 Mar 2013 @ 1:16pm

Yeah, the white house is long on talk and short on walk. As are 99-44/100% of all politicians!
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Anonymous Coward, 4 Mar 2013 @ 2:13pm

What do you make of loc's repsonse?
The LOC issued a response that doesn't say a whole lot.

http://www.loc.gov/today/pr/2013/13-041.html
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Rekrul, 4 Mar 2013 @ 2:55pm

I love the way people seem to be under the impression that a petition on the White House site, even if it reaches the threshold, has the power to affect some sort of change. All that was ever promised was that the president would issue a response to petitions that met the threshold. It was never promised that any kind of action would be taken in response to any given petition, regardless of how many signatures it gets.
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Anonymous Coward, 4 Mar 2013 @ 3:47pm

Maybe to get a better idea on the current administrations thinking a We The People petition should be started to remove the DNCA and or the Anti Circumvention Clause.
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out_of_the_blue, 4 Mar 2013 @ 7:46pm

Nonsense!
Absolute nonsense! No one would EVER have a reason to buy an unlocked phone, therefore NO ONE would EVER have a LEGAL reason to buy an unlocked phone, or facilitate the obtainment of one! Since no one else has the balls to mock you based on your infinite criteria for mockyness, it's up to me then.

Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com
Because nobody mocks Masnick like I do!
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Anonymous Coward, 5 Mar 2013 @ 5:01am

Hoe would they know you unlocked your phone illegally, unless you actually tried to sell that unlocked phone? There are probably a lot of people out there the use "cracks" to bypass the product activation on software they purchased. Even though this is also illegal, how are they going to know you did it unless you tried to either re-sell the software or the computer or computers it was installed on?
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Anonymous Coward, 5 Mar 2013 @ 6:58am

Today:
"the Librarian of Congress (who technically is a part of the executive branch, working for the President)"

Nine months ago:
"the Librarian of Congress, which you might notice is a part of the legislative branch, not the executive branch"
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- txpatriot, 6 Mar 2013 @ 9:43am
  
  Re:
  Good catch. The LOC is part of Congress, not the Executive.
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davemcmenamin, 5 Mar 2013 @ 2:05pm

meh, they look at it and support and then Congress aays "no were not doing this in such and such way because blah blah blah precedent". This isn't new, there's always congressional and presidential disagreement. "Lets meet on that continuing resolution, John...
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