White House Backs the Right to Unlock Your Phone—Will Congress?

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The next step for advocates of phone unlocking is legislation that will give people who open up their devices -- with or without carrier permission -- legal protection.

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Apple

In October, the Library of Congress canceled an exemption that protected unlocking cell phones without carrier permission. The decision, which effectively banned legal unlocking, sparked public contention: More than 114,000 people signed a petition demanding that the ban be lifted. Yesterday, the White House added its name to the ban's list of opponents, declaring "It's time to legalize cell phone unlocking."

The White House response was unequivocal in its defense of the practice -- and not just with regard to cell phones, but also tablets:

[I]f 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.

If you're unfamiliar, unlocking is a software tweak that disables a phone's SIM lock. Once the device is unlocked, owners can use a different service provider. Most cell phones come locked, though unlocked version of some phones -- including the iPhone 5 from Verizon and Google's Nexus 4 -- are available for purchase.

The White House's statement thrust the practice into a national spotlight, but the battle over the unlocking has raged on behind the scenes for years -- an elaborate cat and mouse game played between hackers and electronics manufacturers. Every new phone or tablet's release kicks off a race to decrypt and unlock the device. Only two months after the original iPhone hit the market in 2007, a group of students came out with a hardware hack to unlock the phone. There was just one catch: You had to disassemble the phone and modify the circuitry using a soldering iron.

Just this February, evasiOn, a popular jailbreaking tool for Apple devices, was downloaded more than 14 million times. For many, jailbreaking -- which is legal -- is the first step to unlocking a phone, and Apple is rushing to patch the bugs that evasiOn developers took advantage of. The imminent release of iOS 6.1.3 should spell the end of the popular jailbreaking tool. But another hack will almost surely take its place.

The Legal Battle Over Unlocking

The formal fight over unlocking -- played out in courtrooms and Congress -- has been just as contentious as the informal one. Carriers argue that unlocking a cell phone without permission is a violation of the 1998 Digital Millennium Copyright Act (DMCA) -- a law originally designed to prevent piracy.

The software that runs your cell phone is copyrighted, and unlocking circumvents electronic locks, or encryption, that protect that software. This, the wireless communication industry claims, is prohibited under the anti-circumvention provision in Section 1201 of the DMCA. The new unlocking ban, they add, prevents traffickers from buying large quantities of phones, unlocking them, and reselling them in foreign markets. Moreover, CTIA, the wireless lobbying association, argues that unlocking is largely unnecessary; phones are available that already come unlocked (albeit usually for a higher price), and many carriers have policies that allow for unlocking after the contract term is expired.

On the other side of the debate, digital rights advocates, like the Electronic Frontier Foundation, claim the ban is nothing more than a distortion of copyright laws for corporate profit.

"Unlocking is in a legal grey area under the DMCA," writes Mitch Stoltz, a staff attorney with the EFF. "The law was supposed to protect creative works, but it's often been misused by electronics makers to block competition and kill markets for used goods."

The ban has been largely criticized as anti-consumer, locking buyers into a single carrier -- even after their contract has ended -- and forcing them to buy a new phone when they switch carriers. A ban is particularly problematic for international travelers, who frequently unlock their phones to avoid high roaming charges. Illegal unlocking would put those same consumers at risk of fines up to $2,500 per unlocked phone in a civil suit. Tack on jail time in a criminal case where unlocking is done for commercial profit.

Notably, no one has ever been on the receiving end of such a suit, nor has anyone ever been criminally prosecuted for developing and/or selling unlocking software--and perhaps no one ever will. But carriers and manufacturers do use the threat of prosecution to shut down sites that provide unlocking software to the public.

The Fight Goes Mainstream

In 2005, Motorola sent Sina Khanifar -- then a college student in the UK -- a cease-and-desist letter for selling unlocking software on his website, Cell-Unlock.com.

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Kyle Wiens is the CEO of iFixit, the free repair manual. He writes and speaks regularly repair, e-waste, and informal economies.  More

He is also the founder of Dozuki, a software company that helps manufacturers publish online technical documentation. He has testified on electronics reuse before International Trade Commission and is actively involved in developing global environmental standards. Kyle's writing has been published in Wired, the Harvard Business Review, and the Wall Street Journal. He has appeared on radio and television networks including MSNBC, the BBC, CBC, and NPR. 

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