The Government Might Want To Legalize Phone Unlocking, But Unfortunately It Signed Away That Right

from the oops dept

We've written plenty about the Librarian of Congress' decision to remove the DMCA anti-circumvention exemption that applied to mobile phone unlocking, along with the White House petition that got over 100,000 votes, and the White House's quick response to say that it agreed that phone unlocking should be legal. But for reasons that are not at all clear, it seemed to think it was something that could be fixed by telco law, even though it was copyright law that got us into the mess.

Lawyer Jonathan Band, who works for the Association of Research Libraries, has put out a really excellent short legal primer on the issue, which is a highly readable 8 pages, and covers all the necessary details and background, including a few things you probably have not read elsewhere (such as how some court cases had already narrowed the old "exemption" anyway). However, the most interesting part to me is where he talks about how the White House's position is likely in violation of existing international trade agreements and almost certainly against what the administration itself, via the USTR, is proposing in the Trans Pacific Partnership (TPP) discussions:

The White House position, however, may be inconsistent with the U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the KoreaU.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party. This demonstrates the danger of including in international agreements rigid provisions that do not accommodate technological development.

KORUS obligates the United States and Korea to adopt provisions concerning the technological protection measures based on section 1201 of the DMCA. Furthermore, KORUS mandates that the parties "confine exceptions and limitations" to the circumvention prohibition to a specific list of exceptions that matches the specific exceptions in the DMCA. Cell phone unlocking, of course, is not on that list. KORUS does allow for administrative procedures like the DMCA's rule-making to adopt temporary exemptions, but not permanent ones. The challenge before Congress is to devise a permanent exception for cell phone unlocking that does not breach the obligations under KORUS and other similar free trade agreements.

The draft text for TPP is secret, but the U.S. proposal for the IP chapter was leaked two years ago. The leaked proposal contained KORUS's closed list of exceptions. Because TPP is currently under negotiation, there still is time to make sure that the TPP does not prevent national governments, including the United States, from amending their laws to permit the unlocking of cell phones and other wireless devices.

This is why we find international agreements like ACTA, TPP and now TAFTA so worrisome. Even when they do not directly change the law, they often lock us into bad laws such that we cannot easily fix them. This is one small example, but an important one. Hopefully, the White House and the USTR will (1) release the current negotiating text for the IP chapter on the TPP so that knowledgeable people can go through and it make sure these little "easter eggs" are not present (2) make a clear and definitive statement that it will not agree to any international agreement that would do something as ridiculous as tie Congress's hands when it comes to allowing people to unlock their mobile phones.

Filed Under: congress, copyright, dmca, exceptions, exemptions, free trade agreements, korus, limitations, mobile phones, tpp, unlocking

Mobile Operator CEO: Customers Under Our Data Caps Don't Use Much Data, So Nobody Needs Unlimited Data

from the lolwut? dept

While we just recently got some bandwidth-providers to come out from under their caps-due-to-congestion rocks, there is a long and storied history of ISPs filling in the void of logic in the debate over caps with creamy, pink nonsense cupcakes. Because, hey! Who doesn't like cupcakes? A long-standing favorite of mine was Sprint's deft change of the English language, when they altered the meaning of "unlimited" to mean "5 gigs," because Sprint thinks the real world blows and we're better off in their make-believe Sprint-land, where all of our parents turn into Kevin Durant.

But, in an apparent effort to put the UK in the mix for countries with CEOs who say really dumb things, mobile operator EE's chief guy of stuff has come out with his own assessment of why their data caps are fine and unlimited plans are unnecessary.

EE is the first mobile operator in the UK to offer 4G services. When it launched last October, it was criticised for imposing tight data caps - including a 500MB plan that could be chewed through in five minutes at the network's maximum speed.

Speaking at MWC 2013, [Olaf] Swantee said that on average users are actually getting through only 1.4GB a month. "It shows that the instinct for unlimited data plans is unnecessary," he said.

Now, on the off chance that you've spent the past week doing massive amounts of peyote, let me take a moment to explain why this kind of logic is so abysmal that it might actually be responsible for global warming. Olaf says that unlimited data plans are not in demand because their customers, who are already under their strict caps, on average use about 1.5GB per month. The logic is flawless...and by flawless, I mean backwards and evil. Of course EE customers that are under strict caps are going to do everything possible to stay under those caps. You're charging them extra if they go over! The very sample you're using in your justification nullifies your entire point.

Let's see...an appropriate analogy. Ah, got it! A dog owner buys one of those electric fence collars for Fido, puts the barrier around a twelve-foot squared kitchen, and then insists that the dog doesn't want to leave the kitchen because it rarely chooses to get the piss shocked out of it by stepping over the barrier. If someone tried to use that kind of sophistry on you, how long before you'd shove a couple of pencils in your ears to make the bad man's voice stop hurting you so?

So way to go, United Kingdom. You're officially accepted into the Dumb CEO League of Extraordinary Un-Logic. Play nice now.

Filed Under: data caps, uk, unlimited data

Librarian Of Congress Shoots Back At White House Over Phone Unlocking: We're Just Doing Our Job

from the well,-that's-one-way-to-look-at-it dept

Following the White House officially coming out and saying that mobile phone unlocking should be legal, the Librarian of Congress has issued what feels like a passive aggressive response, basically saying that their job is not to consider the public policy, but just to follow the specific rules under the DMCA.

Both the Librarian of Congress and the Register of Copyrights value our colleagues in the administration and the thoughtful discussions we have had with them on this issue. We also agree with the administration that the question of locked cell phones has implications for telecommunications policy and that it would benefit from review and resolution in that context.

The question of locked cell phones was raised by participants in the Section 1201 rulemaking conducted between September 2011 and October 2012 by the Register of Copyrights, who in turn advises the Librarian of Congress. The rulemaking is a process spelled out by the Digital Millennium Copyright Act in which members of the public can request exemptions from the law to enable circumvention of technological protection measures. In the case of cell phones, the request was to allow circumvention of technological protection measures controlling access to copyrighted software on cell phones.

The rulemaking is a technical, legal proceeding and involves a lengthy public process. It requires the Librarian of Congress and the Register of Copyrights to consider exemptions to the prohibitions on circumvention, based on a factual record developed by the proponents and other interested parties. The officials must consider whether the evidence establishes a need for the exemption based on several statutory factors. It does not permit the U.S. Copyright Office to create permanent exemptions to the law.

As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy.

In other words, "hey, don't blame us -- we just did what we were supposed to do, and that's got nothing to do with policy." I find that a bit disingenuous. Clearly, a part of the DMCA triennial exemptions is to recognize when the law is creating a situation that makes little common sense, and to try to act as a valve to prevent the blocking of certain uses and technologies. Here, they failed to do so, and the White House has called them out on it.

Unfortunately, we're still left scratching our heads as to why the White House claims this should be fixed via telecom law, when the issue arose entirely out of copyright law. It looks like the White House is trying to do some tap dancing to avoid admitting that the DMCA anti-circumvention clause is seriously broken.

Filed Under: copyright, dmca, exemptions, librarian of congress, phone unlocking, policy making, white house

White House Says Mobile Phone Unlocking Should Be Legal

from the so-now-what dept

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.

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

The Details Of What Information The Police Can Suck Out Of Your Phone

from the it's-a-lot-more-than-you-might-think dept

We've been troubled by a series of court rulings that have given police broad powers to search mobile phones without a warrant. California lawmakers tried to pass some legislation preventing such searches, but Governor Jerry Brown vetoed the bill to keep law enforcement happy.

Of course, most people have no idea what the police can pull off of your phone when it's searched, but the ACLU has, thankfully, revealed some documents that ICE filed in a court case. It turns out they can get quite a lot. Using a single "data extraction session" they were able to pull:

• call activity
• phone book directory information
• stored voicemails and text messages
• photos and videos
• apps
• eight different passwords
• 659 geolocation points, including 227 cell towers and 403 WiFi networks with which the cell phone had previously connected.

As the ACLU notes, this is a hell of a lot more information than law enforcement could ever reasonably achieve in the past -- especially without a warrant.

Before the age of smartphones, it was impossible for police to gather this much private information about a person's communications, historical movements, and private life during an arrest. Our pockets and bags simply aren't big enough to carry paper records revealing that much data. We would have never carried around several years' worth of correspondence, for example—but today, five-year-old emails are just a few clicks away using the smartphone in your pocket. The fact that we now carry this much private, sensitive information around with us means that the government is able to get this information, too.

The type of data stored on a smartphone can paint a near-complete picture of even the most private details of someone's personal life. Call history, voicemails, text messages and photographs can provide a catalogue of how—and with whom—a person spends his or her time, exposing everything from intimate photographs to 2 AM text messages. Web browsing history may include Google searches for Alcoholics Anonymous or local gay bars. Apps can expose what you’re reading and listening to. Location information might uncover a visit to an abortion clinic, a political protest, or a psychiatrist.

The whole idea that law enforcement can search your mobile phone is based on the idea that they can search items in your possession. But that never took into account the digital record that is stored in your mobile phone that goes way, way beyond what someone in the past could effectively carry in a box or a bag or something.

Filed Under: details, mobile, privacy, tracking device

White House Petition Concerning Legality Of Unlocking Phones Passes The Magic 100,000 Mark

from the and-now-we-wait dept

Earlier this month, we wrote about a White House Petition, asking to make unlocking mobile phones legal again, since it had been made infringing again, thanks to the Librarian of Congress omitting it from the list of DMCA exceptions last year. As we noted, the White House had recently bumped up the number of signatures needed for it to respond from 25,000 to 100,000, making it difficult to get over that barrier.

However, overnight, that petition finally got over the hurdle, hitting 100,000 signatures. I believe this may be the first petition to hit that threshold under the "new" system. Of course, getting it to that point is merely step one. The real issue is in how the White House will respond, and they have an incredibly easy out: they just point out that the exemption process happens on a schedule, and that those who are concerned about this issue should file to have the Librarian of Congress reconsider in three years...

Filed Under: dmca, dmca exemptions, mobile phones, petition, unlocking, white house

China Tries To Bolster Claim To Disputed Pacific Islands By Upgrading Mobile Coverage There

from the new-railways dept

The Spratly Islands are some 750 reefs, atolls and islands in the South China Sea that are claimed variously by Brunei, the People's Republic of China, the Republic of China (Taiwan), Malaysia, the Philippines and Vietnam. That's largely because of the rich fishing grounds that surround them, and the possibility of significant oil and gas reserves nearby.

In order to reinforce those claims, most of the countries listed above have stationed a few military personnel on a few of the larger islands. Recently, China has come up with a novel way of bolstering its position:

In the ongoing dispute over the Spratly Islands claimed by China and Vietnam, the latest development is that China is opening up 3G services on the islands, not only to Chinese soldiers but also for the country's fishermen.

As the Tech In Asia article quoted above explains:

Chinese soldiers and fishermen will now be able to text message, call, and chat online with family back home over the new 3G network. This upgrade to 3G from regular cellular coverage (started in 2011) and the recent 3G network in the disputed Paracel Islands in July 2012 signals a more permanent Chinese presence on the rocky outposts.

What's interesting here is how this tighter integration with the domestic network is used symbolically to underline that the various islands are -- in China's view -- part of its territory. It can be thought of as the 21st-century equivalent of building roads in the Roman Empire, or laying down railway tracks in the American West.

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Filed Under: 3g, china, landgrab, mobile towers, spratly islands, vietnam, wireless

White House Petition On Legalizing Unlocking Of Mobile Phones Tries To Pass 100,000 Signature Threshold

from the getting-closer... dept

Last month, we wrote about how the White House had bumped up the number of signatures it requires to get on "We the People..." petitions from 25,000 to 100,000 before it is "required" to respond (though, its response rate on qualifying petitions has been dismal). Around the same time, we also talked about how unlocking your mobile phone, so it could be used on other carriers, was switching from being legal to being illegal, thanks to the Librarian of Congress choosing not to renew an exemption to the DMCA's anti-circumvention rules for unlocking mobile phones.

While the reasoning for not renewing the exemption was that many carriers now allow unlocking anyway, that's not true across the board, and there are plenty of limitations. Just the fact that you need to ask permission to do what you want with a device you legally purchased and own should be troubling enough. Lots of people were reasonably angered by this story, and a petition sprung up on the White House site, urging the President to reinstate the exemption:

We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.

The petition itself was actually set up by Sina Khanifar, who used to run a business around unlocking phones, and was threatened by Motorola back in 2005. It was that experience that led to the original attempt to convince the Librarian of Congress to establish the unlocking exemption from the DMCA. He has explained why the exemption is important, and how this simple change not only makes something perfectly reasonable against the law, but how it effectively kills off the business he had built around unlocking phones and helping consumers actually use what they want. And, contrary to what some claim about the need to keep phones locked, he points out that there are already contractual ways to incentivize people to keep their phones locked. Lots of carriers have long term contracts with large early termination fees. They don't need the threat of copyright penalties on top of that as well.

Motorola's cease and desist letter didn't claim that I was illegally distributing their copyrighted software. Instead, it claimed that I was "distributing software ... for the purpose of circumventing the protection measures" associated with their copyrighted software. There is a subtle but meaningful difference.

The DMCA includes anti-circumvention provisions that are intended to protect music and movie owners who want to distribute their work digitally, but are afraid of piracy. The provisions prohibit anyone from circumventing the locks that control access to copyrighted works. For example, DVDs are protected by a Digital Rights Management (DRM) system that attempts to prevent anyone from easily making copies of movies. The DMCA prohibits circumventing that type of protection system.

But unlocking a phone has nothing to do with copyright infringement, and using the DMCA to prosecute unlocking cell phones is not what the law was intended for. If Motorola's interpretation of the DMCA were valid, companies would be able to create simple software security mechanisms that legally prevent a customer from using a device in any way except that in which the manufacturer intended.

As we've noted time and time again, the DMCA anti-circumvention clause has little to do with basic copyright, and everything to do with big companies trying to control what you thought you had purchased.

The petition needs to get to 100,000 signatures by February 23rd, and is currently sitting at about 62,000. It's possible, but it may be difficult. And, of course, it's not even clear what (if anything) the administration can really do. The DMCA exemption rulemaking only comes around every three years. Having them jump in with an "off-year" change would be unprecedented -- and could potentially lead to legal challenges. Congress, however, could step in and fix things with a bit of regulation, but it's unclear if they have the appetite to do that. Still, having people speak out and show that they think this bit of copyright law is crazy and restrictive seems like a good thing.

Filed Under: anti-circumvention, dmca, exceptions, mobile phones, petition, sina khanifar, unlocking, white house

Canadian Schools Ban WiFi Based On Bad Science

from the and-what-are-they-teaching-our-kids dept

A decade ago, we first wrote about some freaked out, clueless parents suing a school district for wanting to install a WiFi network. The parents believed -- based on absolutely no evidence whatsoever -- that WiFi networks emitted "harmful" electro-magnetic radiation. Since then, we've heard of many such stories of people fearing the health impacts of WiFi, despite a near total lack of evidence of any harm at all. Studies have found that an entire year sitting next to a WiFi access point gives you the equivalent radiation of 20 minutes on a mobile phone. And yet, every few years, we hear about parents or politicians freaking out about the issue and trying to get WiFi banned in schools.

Amazingly, they've succeeded in some places, including 12 elementary and middle schools up in Canada, which are now being called out by a group called "Bad Science Watch" for making decisions based on absolutely and totally bogus science. You can read the full report here, in which they call out "anti-WiFi activists" who are "spreading misinformation." It seems they ought to call out schools as well. You would think that places of learning would investigate the actual science.

These claims are not substantiated by the scientific literature and have little acceptance from medical professionals and the scientific community. This activism therefore amounts to nothing more than fear-mongering by misguided special interest groups who are attempting to have these networks removed.

Nevertheless, the media has been all too willing to fan the flames of controversy and has contributed to a growing false uncertainty over the safety of WiFi. As a result many school boards, libraries, and town councils across Canada have been called on by concerned citizens to limit or remove WiFi networks.

Filed Under: canada, health, scared, wifi

AT&T Can Foist Its Data Plans On You, Whether You Use It Or Not

from the eff-the-customer dept

Our most recent posts on AT&T share something of a theme in that they're about what they won't enable you to do. For instance, you can't inform them of a security hole or you'll face years of prison time. Likewise, we learned recently of their plans to limit what you can do on the internet, or limit your access entirely via one flavor of the now infamous "Six Strikes" plans. Hell, sometimes AT&T doesn't even allow competitors, because logic based on lies is so much more gratifying. That said, we make a habit here of pointing out when companies manage to go the other way and enable rather than disable, so it's with that in mind that we congratulate AT&T for generously enabling (and charging) customers for data plans on used smart phones their customers bought, even when those customers disabled and refuse to use any data applications. (In case you're slow on the uptake: that's sarcasm.)

Joel Runyon has the heartfelt story of how AT&T looked out for his own best interests by charging him for a data plan he didn't want, never used, and specifically turned off on his phone.

4-5 months ago, the hardware on my old flip phone was dying (that happens when it's from 2008). I was out of contract with AT&T and so I could have chose to get a new subsidized phone & shiny new 2-year contract with them, but I simply bought a used out-of-contract iPhone 4 from my friend and swapped in my sim card (that whole commitment thing again). Again, no problems. America! Neat.

After using the iPhone as a dumb phone for all intents & purposes (call, text, no data) for the last 4-5 months or so, I get a text message out of the blue from AT&T that they've detected I'm using a smart phone and that all smart phones require a data plan - never mind that I actually had data turned off. That would be only a little annoying if it was just a notification message, but they went ahead, chose a data plan for me, and started billing me from then on.

Yes, AT&T unilaterally decided a data plan was needed for all of the data Joel didn't need and didn't use. This wasn't a new contract along with a subsidized phone. Simply by putting his existing sim card in a used phone he bought elsewhere, this automagically meant he was given a data plan and billed for it. No discussion, no contract, just instant data plan.

"Welcome to AT&T customer service. Now, if you'd kindly go f@*# yourself..."
Image source: CC BY-SA 2.0

Offering customers choices is a good thing. Limiting them is not. Forcing a plan on someone who has no intention of using it and charging them for it is about the best way I can think of to lose a customer. When Runyon contacted AT&T about this, they apparently replied that this was "standard practice," in which case it should probably be "standard practice" to find another carrier.

Filed Under: data plans, iphones, smart phones, wireless
Companies: at&t