White House opposes restrictions on unlocking cellphones

The Obama administration came out in favor of legalizing unlocking cellphones on Monday. The statement raises questions about what restrictions the Digital Millennial Copyright Act places on consumers with its ban on unlocking personal devices.

The White House and the Federal Communications Commission have joined opponents criticizing the Library of Congress' new provisions against unlocking cellphones.

Under current law, consumers cannot take phones they have purchased from one network and use them when they sign with another, even after their previous contracts have expired. They also have to pay roaming fees when abroad, as they cannot insert a local SIM card to a locked phone.

The White House issued a statement Monday in support of laws that change the Library of Congress' restrictions on unlocking cellphones under the Digital Millennium Copyright Act. 

R. David Edelman, senior advisor for Internet, Innovation & Privacy, released a statement on behalf of the White House supporting a petition proposing that consumers should be able to unlock their cellphones, tablets, and other devices without criminal or other penalties.

“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,” the statement reads.

The Library of Congress established federal copyright penalties for unlocking a cellphone, which kicked in on Jan. 26. Criminal penalties include a $500,000 fine and/or five years in prison for the first offense. Wireless carriers can collect statutory civil damages ranging from $200 and $2,500 per violation.

More than 114,000 people signed a petition asking the Library of Congress to rescind the new DMCA provisions, which kicked in on Jan. 26. Cellphones were previously exempted from DMCA regulations.

FCC Chairman Julius Genachowski also expressed concerns about the DMCA rules about unlocking cellphones.

"From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn't pass the common sense test,” Mr. Genachowski says in a statement. “The FCC is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers' ability to unlock their mobile phones.

The White House’s statement notes the Library of Congress agrees that the issue has implications for telecommunications policy and would benefit from review.

The Obama administration would support “narrow legislative fixes” to ensure that neither criminal law nor technological locks prevent consumers from switching carriers after they complete a service agreement.

The Electronic Frontier Foundation praised the White House’s stance: “Your rights to reuse, resell, or give away devices are especially important—and the Obama administration gets this. As the administration’s telecommunications agency pointed out last year, digital locks backed up by legal threats aren’t just used to police copyrights—they’re used to block competition.”

Parker Higgins, an EFF activist, says the controversy surrounding locked phones shows that the Library of Congress' rules surrounding copyright infringement may be causing more harm than good.

"I can understand that the Library of Congress doesn't really get the significance of how technology is being used, but really across the board this rule-making procedure is not the way that policy should be made,” Mr. Higgins says.

Unlocking versus jailbreaking

There is another issue, however, that the petition and the White House does not address, Higgins says. The DMCA’s restrictions also extend to jailbreaking.

Jailbreaking, not to be confused with unlocking, is the act of removing restrictions on what software one can install on a phone. For example, some people jailbreak an iPhone to access apps that are not offered in the App Store. Unlocking only allows you to change the carrier your phone is on.

The EFF won a renewal of exemptions to the DMCA including jailbreaking rights for smart phones (but not tablets). The DMCA’s restrictions also prohibit jailbreaking tablets, game consoles, and other personal devices, controlling which devices and operating systems consumers can use for certain video subscriptions and other services, the EFF statement notes.

Jay Freeman, the administrator of the app store for jailbroken Apple devices known as Cydia, told Forbes that the rules criminalize jailbreaking tablets and unlocking phones and that iPad jailbreakers also need to be exempted.

“It’s important to realize that the [White House's statement] is very narrow,” Mr. Freeman told Forbes. “We definitely need a different campaign, one that focuses on the root problem: that the DMCA’s 1201 anti-tampering clause is confusing, limiting, and generally really annoying.”

Higgins says the White House response did not help clear up the distinction between unlocking and jailbreaking. While the statement addressed unlocking tablets, it did not acknowledge that tablets are more often associated with jailbreaking than unlocking.

"I think that people should be allowed to unlock their iPads, just as people unlock their iPhones, but I think another important question should be about jailbreaking," Higgins says.

“It shouldn’t fall to the representatives of the public — in this case, us — to have to try to explain to the Library of Congress what these things are and why they’re useful,” he adds. “It should be by default. If you own the device, you should be able to do what you want by it.”

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