The White House Supports the Right to Unlock Your Cellphone—but That's Just the Start

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I was part of a movement that protested the egregious law against unlocking phones. The Obama administration sided with us. It can do more to protect property rights in the digital age.

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Reuters

On January 26 this year, the Librarian of Congress declared that unlocking a cell phone to make it available on other carriers was illegal under the Digital Millennium Copyright Act (DMCA) of 1998.

A free society should not ban technologies unless there is a truly overwhelming and compelling governmental interest

The ruling was flawed in three major ways. First, it violated the property rights of phone owners (it is, after all, your phone, and you should do what you want with it). Second, it protected the interest and profits of a handful of large telecom companies over smaller competitors. Third, it created higher barriers to entry for new telecom companies, which could lead to less innovation.

Entrepreneur Sina Khanifar and I have advocated in The Atlantic and across the Web that this absurd ruling must be overturned, sparking a White House petition, written by Sina, to legalize unlocking. On February 21, 2013, we hit the 100,000-signature threshold to force the White House to provide a formal response.

Today, the White House came out in favor of cellphone unlocking:

"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 says it will support narrow legislative fixes to solve this problem, but this is merely an interim step. A more permanent solution could ensure consumer rights, protect small businesses, and foster innovation.

The DMCA was passed three years before the iPod, six years before Google Books and nine years before the Kindle. Technology moves quickly, and it's not surprising that the law is now antiquated. But because of the draconian terms of the statute, the effect of being antiquated is not merely a poor bill; rather, it restricts entire classes of technology, such as consumer-unlocked cellphones (after contract has expired) that could spur competition in the wireless device and services market. Consumer groups and affected companies must fight for exemptions every three years by petitioning the Librarian of Congress to exempt seemingly ordinary technologies from the DMCA's list of criminal activities.

WHAT'S NEXT

First, the White House should propose legislation to permanently legalize jail breaking, unlocking, accessibility technology for people with disabilities, backing up movies, and computer science research.

Second, the White House should announce a new commission to present recommendations to replace the triennial review process and to ensure that technologies are not banned unless there are overwhelming and compelling governmental interests. The commission should be extremely skeptical of banning any technology -- especially outside of the context of weapons. Additionally, the recommendations should include that DMCA circumvention provisions do not apply to circumvention without a "nexus" to copyright infringement. The White House should then champion legislation to enact these recommendations. If we are to determine that any forms of technology should constitute contraband, that process must be transparent and accessible for the general public.

The White House could support "legalizing" the following technologies permanently:

• Technology for unlocking and jail breaking for all consumer electronic devices.

• Accessibility technology for people who are deaf or blind - including e-book read-aloud functionality and advanced closed captioning and video description features for video programming.

• Technology to backup legally purchased DVD's and Blu-Ray discs for personal use.

• Computer science research.

Currently there is an exception for personal jail breaking (allowing individuals to install unapproved applications by altering the OS), but developing, selling, trafficking, or discussing the underlying technology is still illegal and there is no personal exceptions for tablets or other devices. This is unbelievable, especially when according to @Saurik, 23 million iOS devices are running a version of Cydia - a rough barometer of the number of devices jail broken. Until recently, personal jail breaking was illegal as well - meaning that all of the owners of those devices could be criminally liable. Unlocking new phones, as previously explained, is now illegal in all circumstances.

Accessibility technology has received an exception, but it is so narrow that it is nearly useless for persons who are deaf or blind. This exception was not the one requested on behalf of persons who are deaf and blind. And like the jail breaking, while there is a narrow exception for personal use -- developing, selling, trafficking, or discussing the underlying technology is still illegal. What use is an exception for accessibility for personal use, if no one can develop the tools?

Technology to backup legally purchased DVDs and Blu-Ray discs for personal use is widely available and widely used but is completely illegal (in the US) - thus making millions of Americans criminals for a what most would consider non-infringing activity (if they own the content).

Lastly, research into computer science and cryptography for academic purposes should be lawful. There is a current exception but it is narrow and unclear and this has a chilling effect upon a lot of legitimate research - including research to make Digital Rights Management software better and more secure.

These are not the only technologies that should be permanently allowed, but it is a start. The White House should then commence a study to evaluate whether there is an overwhelming and compelling governmental interest in keeping other technologies as banned and to revise the triennial review process altogether.

THE SOPA GENERATION

During the SOPA protest, millions of average people in the digital generation rose up to stop this terrible legislation. One popular meme from the protest include, "Dear Congress, It's No Longer OK To Not Know How The Internet Works." Today, as I argued previously in Boing Boing, the anti-SOPA coalition needs to put forward positive reforms rather than merely waiting for the next SOPA to come.

SOPA would have censored the Internet and curtailed technological innovation. It is easy to see why it inflamed millions of Americans. In this case, the government has banned broad categories of technologies--and broad categories of uses--without any clear governmental interest. This is another extreme and unacceptable violation of personal freedom.

A free society shouldn't have to petition its government every three years to allow access to technologies that are ordinary and commonplace. Innovation cannot depend on begging permission from an unelected bureaucrat every three years A free society should not ban technologies unless there is a truly overwhelming and compelling governmental interest.

In the wake of popular support for the cellphone-unlocking petition, the White House responded today by publicly coming out in support of cellphone unlocking. This is great news, as is the news of an official investigation by the FCC. But this is a beginning, not the end. It's first up to Congress to act, but the White House should make sure that reversing this law is not the last step toward protecting property rights in the digital age.

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Derek Khanna is a Yale Law Visiting Fellow at the Information Society Project. He was previously a congressional staffer for the House Republican Study Committee and Senator Scott Brown (R-MA). He writes about issues at the intersection of government and technology.

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