Congress’s Lackluster Cell Phone Unlocking Legislation

It’s been a little over a week since the White House threw its support behind the effort to legalize unlocking. Almost immediately, cell phone unlocking became a hot button political issue.

cell phone unlocking

The Federal Communications Commission quickly backed the Obama administration’s position. Petitions popped up demanding Congress to take action. Sina Khanifar, author of the We the People petition that first got the White House’s attention, launched a campaign to Fix the DMCA—the massive anti-piracy law that made unlocking illegal in the first place.

Congress clamored to throw its hat into the legislative ring. The response has been uncharacteristically bipartisan. Unlocking is a political grabbag—there’s something that appeals to everyone: personal property, digital freedom, consumer choice, sustainability, and business growth. In the last week, Senate members have penned no fewer than three bills to legalize unlocking.

Here’s a breakdown of the bills on the table:

  • Wireless Device Independence Act of 2013: The first senator to pen legislation, Senator Ron Wyden (D-OR) proposed a new law that would amend Section 1201 of the United States Code to legalize unlocking for “interoperability purposes.”
  • Wireless Consumer Choice Act: In a bipartisan effort Senators Amy Klobuchar (D-MN), Mike Lee (R-UT) and Richard Blumenthal (D-CT) introduced a bill instructing the FCC “to direct that wireless providers permit the unlocking of mobile devices.”
  • Unlocking Consumer Choice and Wireless Competition Act: The last to the party (so far), Senator Patrick Leahy (D-VT) introduced what he calls bipartisan, “narrow, commonsense legislation.” The bill would re-establish the Library of Congress’s rule permitting cell phone unlocking, and “directs the Library to undertake a new proceeding to consider whether to broaden this exemption to allow unlocking of other wireless devices such as tablets.”

Three different approaches to the same issue; unfortunately, none go far enough. The unlocking ban is a symptom of a far larger problem: copyright law has been hijacked by manufacturers and carriers as a way to protect profits at the expense of people.

Senator Wyden’s bill perhaps goes the farthest in attempting to amend copyright law to allow for unlocking. Senator Leahy’s bill, on the other hand, specifies that copyright law be left untouched: The unlocking ban would be reversed, but the Librarian of Congress would continue to decide what technologies should and should not be hit with a big DMCA-shaped stick.

Derek Khanna, lead unlocking advocate, roundly criticized each proposed law in a recent Forbes article. “Senator Wyden’s bill would keep the technology itself as still illegal and Sen. Klobochar’s bill would not deal with the legal penalties,” he wrote. But he saved his harshest criticism for Leahy’s bill, saying it “would do nothing other than temporarily reverse the Librarian’s decision – thereby kicking the can down the road.” He continues:

“To be clear: the public favors actual permanent solutions. Continuing to defer to an unelected bureaucratic on whether to legalize a technology that the public wants as legal is not a real solution and is not consistent with the White House’s position. It is not acceptable for average people to be arrested for unlocking their own device and subject to up to 5 years in prison. We hope that future bills permanently fix this problem. This technology must be permanently legalized for personal use and for developing, trafficking and selling the tools to help consumers.”

Congress has the attention span of an ADHD-addled teenager. Want to protect your right to repair, hack, modify, and maintain the stuff you own? Keep being noisy; it’s the only way to keep the discussion going. The battle over unlocking is far from over. Demand that Congress write good legislation to legalize unlocking. And tell them to fix copyright and Fix the DMCA, once and for all.

Update: Jennifer Granick from Stanford’s Center for Internet and Society has published an analysis of the existing legislation along with a list of requirements for new legislation.