The legal argument -- and the business case -- against the rule making it illegal to take your phone to a different carrier
Since I called the Librarian of Congress's decision against unlocking cell phones "the most ridiculous law of 2013," legal experts, techies, and other readers have written to tell me they, too, consider the restriction an outrageous violation of property rights. In particular, several people asked, "No one would really get into trouble for this. Right?"
Maybe not. But as I said, the real problem is not the danger that average people would get a $500,000 fine and 5 years in jail. The problem is that 95% of the accused currently accept a plea deal and would accept almost anything to avoid risking such a stark penalty and that this stark penalty can be used by companies to scare average consumers from exercising their own property rights. For that reason, this restriction violates one of our most basic and fundamental of freedoms and represents an Orwellian invasion of our personal liberty.
The legal instrument that makes this activity illegal is the Digital Millennium Copyright Act of 1998, which contains a broad, vague section making it illegal to circumvent digital protection technology. The Librarian of Congress decided that the protection available to consumers through an exception as no longer necessary, therefore, presumably making this now illegal. Cellphone companies can now intimidate ordinary people who are forced to wonder who exactly owns the phone that they've legally purchased.
This isn't a debate about big business vs. little consumers. It's a story of crony-capitalism. (In fact, T-Mobile was asking their customers to unlock their phones until Saturday when this became illegal for new phones, as you can see in this image).
THE DMCA vs. YOUR PHONE
The DMCA was initially set up to help stop piracy. So what, you might wonder, does piracy have to do with unlocking your phone? Very little. The law made it illegal to use technology to circumvent digital protection technology. The Librarian of Congress, who has power to grant exceptions to the law, has kept seemingly harmless activities illegal. For example, a court can shut down a blog or website simply for discussing the techniques and procedures on how to back up a DVD to your home PC (and they have done so). This is remarkable considering that in the Pentagon Papers case the Supreme Court ruled that a court cannot order an injunction to prevent the release of classified documents unless under extraordinary circumstances in which the government can demonstrate "grave and irreparable danger" to the public interest. So, releasing classified documents: allowed. But discussing how to back-up DVDs and unlocking phones: illegal.
Some have argued that prohibiting unlocking phones is important to enforce contract law. But the DMCA is concerned with protecting copyrights. It has nothing to do with enforcing contract law. The law is being co-opted to serve the interests of one or two phone companies. And the contract argument is specious, even if you unlock your phone, you are still under contract with your cellphone provider, unlocking your phone has nothing to do with contract law and everything to do with basic property rights.
We must ask ourselves: "What specific limitations upon our personal freedom and liberty are we prepared to accept in the name of achieving the goal of protecting intellectual property?" Some limitations may be sound, and Congress should debate them on the record. Obviously, we do not have the right to copy books, movies and music and sell them. But other restrictions are invasive and have nothing to do with protecting intellectual property (like unlocking and jail-breaking your phone or adaptive technology for the blind to read). Restrictions upon the use of technology should receive strict legislative scrutiny because of its impact upon innovation and our personal freedom.
Congress's inaction in the face of the decision by the Librarian of Congress represents a dereliction of duty. It should pass a new law codifying that adaptive technology for the blind, backing up DVD's to your computer, and unlocking and jail breaking your phone are lawful activities regardless of the decisions of the Librarian of Congress.
Instead, Washington has removed a business model, hurt consumers and chosen winners and losers in a dynamic and emerging market. These decisions have a real impact on real people without the resources to hire lobbyists. Sina Khanifar (@sinak) is one of them, and he has even drafted a White House petition to reverse the ruling by the Librarian of Congress. So far the petition has over 61,000 signatories.
Sina, now a co-founder at OpenSignal, was challenged under the DMCA for unlocking phones while in college. Here's his story:
In September 2005, I received a cease and desist letter from Motorola for selling software to unlock their cell phones.
The letter indicated that I was in breach of the Digital Millennium Copyright Act (DMCA) by circumventing protection measures in their phones, a crime that's punishable by up to 5 years in prison and half a million dollars in fines per incident. At the time, I was an undergraduate student studying Physics. The prospect of 5 years or more in prison was devastating.
A HUNGRY STUDENT
I started unlocking phones after a typical entrepreneurial experience: I had a problem and was forced to find a solution. I'd brought a cell phone from California to use while attending college in the UK, but quickly discovered that it wouldn't work with any British cell networks. The phone was locked. Strapped for cash and unable to pay for a new phone, I figured out how to change the Motorola firmware to unlock the device.