A Year And A Half Later, Unlocking Your Phone One Step Closer To Being Legal

from the congress-moves-in-mysteriously-slow-ways dept

Wed, Jun 25th 2014 8:30pm — Mike Masnick

A year and a half ago, unlocking your mobile phone became illegal thanks to a combination of ridiculous factors, mainly predicated on the DMCA and the way some people interpret its anti-circumvention provisions. For years the Librarian of Congress had carved out a special exemption for phone unlocking -- but what the omnipotent copyright gods of the Librarian of Congress giveth, they can also taketh away, and they did. The situation was so ridiculous that over 100,000 people quickly signed a White House petition protesting this, and the White House (with surprising speed) agreed that phone unlocking should be legal. Though, somewhat bizarrely, the White House seemed to think it was an issue for the FCC to fix, rather than recognizing the underlying fault of copyright law.

Various proposals were raised, but thanks to ridiculous international trade agreements, some of the best proposals ended up on the cutting room floor. I spoke to two separate Congressional staffers who had written up bills to legalize phone unlocking, only to have their international trade experts come in and reject them as likely violating a whole bunch of secretly negotiated trade agreements (and you wonder why we're concerned about things like TPP and TTIP limiting Congress...).

It took about a year before the House finally came up with a bill that had some significant limitations and problems. Despite some last minute protests, that bill passed. Since then, there's been a fair bit of negotiating in the Senate, and it appears that a compromise deal has been struck that should, hopefully, finally legalize phone unlocking a year and a half later. The Senate bill is not perfect (almost no legislation ever is), but it's a big step forward in the right direction.

It still is ridiculous that we're in this situation in the first place, and it should be a sign to look more closely at the problems of the DMCA's anti-circumvention laws. It's equally ridiculous that it's taken a year and a half to "fix" this specific problem, but at least it finally appears that a solution is at hand for the specific issue of unlocking your mobile phone.

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Filed Under: anti-circumvention, dmca, phone unlocking, senate

20 Comments

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That One Guy (profile), 25 Jun 2014 @ 7:00pm

No affect on US law at all... until you try and change it
I spoke to two separate Congressional staffers who had written up bills to legalize phone unlocking, only to have their international trade experts come in and reject them as likely violating a whole bunch of secretly negotiated trade agreements

And yet the ones pushing so hard for those 'trade' agreements always insist that nothing in them would prohibit the US from crafting or modifying it's own laws, dismissing such concerns as 'unrealistic' or 'overblown'.

You'd think by now they'd drop such an obvious lie, but I suppose there's still enough gullible and/or bought politicians around that they can continue to get away with such claims.
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Anonymous Coward, 25 Jun 2014 @ 8:36pm

Great to hear about the cell phone.

Now when are they going to put some teeth into the DMCA law for abusive use?
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Anonymous Anonymous Coward, 25 Jun 2014 @ 8:38pm

Trade agreement ratification
It is my understanding that trade agreements must be ratified by the Senate, though apparently this is sometimes sorta ignored by the Executive. Can the Senate un-ratify a trade agreement that is in their way?
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Anonymous Coward, 25 Jun 2014 @ 8:38pm

I think that solving things like this give legislators press for "fixing" things, which in turn provides a perverse incentive for creating problems that need to be solved...
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Anonymous Anonymous Coward, 25 Jun 2014 @ 8:56pm

Re: No affect on US law at all... until you try and change it
Makes one wonder if those trade agreements that might get violated are ones that are already on the books, or ones in the works?
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Shmerl, 25 Jun 2014 @ 9:18pm

How useful is it?
I think efforts should better be concentrated on fixing the root cause - i.e. repealing DMCA 1201 itself. Narrowly fixing the phones unlocking problem is treating symptoms, not battling the real sickness. It will also give the Congress an excuse that they "did something", while in reality the problem is still there.

What happened to Zoe Lofgren's unlocking bill? That was the real deal. Is it a lost cause or something is still going on with it?
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bill of laden, 25 Jun 2014 @ 9:30pm

Re: How useful is it?
Its sitting in a subcommitte.

"Latest Major Action: 6/14/2013 Referred to House subcommittee. Status: Referred to the Subcommittee on Courts, Intellectual Property, and the Internet."

http://thomas.loc.gov/cgi-bin/bdquery/D?d113:6:./temp/~bdyFNJ::
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Greevar (profile), 25 Jun 2014 @ 9:38pm

You can't fix a house while its foundation is crumbling.
Which is why I wish we could just scrap copyright in its entirety. The industry doesn't need copyright, and if you think it does, you should get your head checked. Yank the rug from under them and tell them to go find another business model. They don't get to use the law to externalize risk at the expense of the public welfare.
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Anonymous Coward, 25 Jun 2014 @ 10:01pm

Copyright. Because what's mine is mine, what's yours is mine, and what isn't mine is mine.
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G Thompson (profile), 26 Jun 2014 @ 2:34am

Re: No affect on US law at all... until you try and change it
It's also very intriguing to a non American like myself who also understands and knows that unlocking phones in nearly every other country (other than some really despot regimes) is actually quite freakin legal.

So the question has to be asked.. Who screwed over America so bad on a one sided trade deal and can they teach everyone else this neat trick?

Or maybe the trade experts were confabulating? nah... they would never lie to anyone /sarc
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RD, 26 Jun 2014 @ 4:06am

Re: Re: No affect on US law at all... until you try and change it
"So the question has to be asked.. Who screwed over America so bad on a one sided trade deal and can they teach everyone else this neat trick?"

There is a maxim we have here to guide to an answer to a question like this. That maxim is:

"Who stood the most to gain by the passing of such a one-sided trade deal?"

When you figure out who gains in a situation like this, you have your answer as to who screwed over the public and consumer.
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Mike Masnick (profile), 26 Jun 2014 @ 5:45am

Re: Trade agreement ratification
It is my understanding that trade agreements must be ratified by the Senate, though apparently this is sometimes sorta ignored by the Executive. Can the Senate un-ratify a trade agreement that is in their way?

* Treaties must be ratified by 2/3 majority of the Senate.
* Trade agreements must be ratified by a majority of both houses of Congress.
* Executive agreements can be just signed by the President.

Figuring out the difference between the three... well, that requires lawyers.

And, yes, in *theory* Congress need not feel bound by any of those. But, in reality, Congress would get attacked left, right and center by special interest groups about "violating our international agreements," and it could then potentially lead to sanctions via the WTO, creating some other headaches.
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Anonymous Coward, 26 Jun 2014 @ 5:58am

It maybe illegal to unlock, but it is still legal to not have one. This freedom from smart_spy maybe short lived. I'm sure some PAC somewhere is busily writing new laws requiring everyone to alway carry their locked smart_spy.
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Anonymous Coward, 26 Jun 2014 @ 8:23am

Is it always illegal?
There are platforms like Android which give users explicit permission to change some copyrighted parts. I'm not sure exactly what code needs to be modified to unlock a phone. Is it some extra closed-source piece? If it were open, maybe unlocking it would already be legal (unless its something like DeCSS where the "protection" applies to a different work).
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Anonymous Coward, 26 Jun 2014 @ 8:31am

Re: Is it always illegal?
Techdirt failed to clarify that is not about unlocking software. It's talking about something called "carrier locking" or "sim locking". It's a mechanism which prevents the hardware from being used by a different phone provider.
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Mason Wheeler (profile), 26 Jun 2014 @ 10:51am

Re: Re: Trade agreement ratification
And what does it take for Congress to officially, legally say "the United States of America withdraws from the such-and-such treaty"? Because it's starting to look more and more like we seriously need to, from more than one.
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Anonymous Coward, 26 Jun 2014 @ 12:59pm

I am doing very well without a cell phone these days. My privacy and dignity remain intact, no thanks to our constitution, our president, or the NSA.
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John Fenderson (profile), 26 Jun 2014 @ 2:25pm

Re: Is it always illegal?
Technically, it's not the unlocking that's illegal, it's the bypassing of technical access controls intended to stop you from unlocking that's illegal, thanks to the insane DMCA anti-circumvention clause.

Android has nothing to do with this. This is a separate subsystem that is opaque to the operating system.
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John Fenderson (profile), 26 Jun 2014 @ 2:27pm

Re:
Are you sure? You're being spied on just as much when you use a landline phone, use a credit or debit card, use a supermarket affinity card, appear in public, and any of a thousand other everyday activities.

Ditching the cell phone to regain your privacy is pretty much just pissing into the ocean.
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GEMont (profile), 26 Jun 2014 @ 9:51pm

... nothing up my sleeve....
"... but at least it finally appears that a solution is at hand for the specific issue of unlocking your mobile phone."

"Appears" is the operative word.

And "appearances" can be, and usually are, deceiving.

Especially when it comes to taking candy out of the mouths of any of the Legacy Industries - a near impossible task.

My money is one at least 2 more years of standard "beating around the bush", followed by a really complex set of "lawyered" legislations that look meaningful, but which actually keeps the silly laws intact and probably raises the penalty.

Or to put it another way - business as usual.

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