Bill would let consumers "unlock" mobile phones

A bill sitting on President Obama's desk is likely to please consumers. If it becomes law, it will make legal the practice of "unlocking" mobile phones so they can be used on any carrier with a compatible network.

While some carriers have long permitted unlocking handsets at the end of the contract period, when the often pricey handset is paid for, unlocking in general has long been on shaky legal ground. That's because the practice technically falls under the purview of the Digital Millennium Copyright Act (DMCA), which by law is interpreted by the Congressional Librarian, an appointed position. The current Congressional Librarian is James Billington, appointed by President Reagan in 1987.

The DMCA calls on the Congressional Librarian to review the law every three years to decide what technologies are regulated by the law and which may be circumvented. Billington last did this in late 2012. At the time, he surprised many in the mobile phone industry by ruling that cell-phone unlocking was restricted. That means if you unlocked a phone at the end of a two-year contract, the federal government considered you in violation of copyright law.

In response, a grassroots petition to legalize cell phone unlocking gathered over 100,000 signatures. President Obama himself said he would support such a law, and the Unlocking Consumer Choice and Wireless Competition Act was then fast-tracked through the U.S. Senate and later through the House with broad bipartisan support. All of that culminated last week, when the House approved the bill and sent it along to the President.

The goal of the legislation is obviously to undo Billington's decision and legalize cell phone unlocking. Not only does the bill promise to make cell phone unlocking legal, but it also directs the librarian to investigate other portable devices. Should tablets like the cellular-equipped iPad, for example, be eligible for unlocking in the same way?

And therein lies a key problem. The current bill does not fundamentally rewrite the DMCA, which means that when the law is reinterpreted in 2015 on its usual three-year schedule, it's possible for the Unlocking Consumer Choice and Wireless Competition Act to be completely reversed, making cell phone unlocking illegal again.

For now, then, the Unlocking Consumer Choice and Wireless Competition Act provides little more than a temporary reprieve from the DMCA's ability to regulate cell-phone unlocking and cast ordinary consumers as copyright criminals.

In response, Rep. Zoe Lofgren has introduced the Unlocking Technology Act of 2013, which declares, in part, that "it is not an infringement to copy or adapt the software or firmware of a user-purchased mobile communications device for the sole purpose of enabling the device to connect to a wireless communications network." If passed, this could give consumers permanent relief from anti-unlocking regulations.

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