Absurd: The Very Basic Thing It's Still Illegal to Do With Your Mobile Phone

Do you own a smart phone? Do you know how easy it is to break the law using only that smartphone?

It’s this easy: After your current contract with your wireless provider (perhaps Verizon) expires, change the software on your phone such that you can use it to make calls with a different provider (say, T-Mobile). There, you just broke the law.

That’s right: Using a phone—purchased by you—to legally connect to another mobile network has broken federal law since October 2012. But on Thursday, the lead regulator of the mobile phone industry took a major, formal step to not only making phone unlocking legal—but making it easier, and making it free.

This dispute has long pitted consumers and their advocates against some of the major mobile carriers: AT&T, Verizon, and US Cellular among them. Some mobile carriers, including T-Mobile and Sprint, already allow unlocking.

Unlocking a phone became illegal last year when the Librarian of Congress decided to remove it from a list of valid exemptions to the Digital Millennium Copyright Act. The DMCA is the stringent, massive 1998 law that governs a great deal of how copyright works online. To unlock a phone is to alter a phone’s firmware (firmware is the program that controls how the software in a device talks to its hardware) and that firmware is copyrighted by the major carriers.

Because the DMCA prohibits changing any device’s copyrighted firmware, the DMCA prohibits unlocking a phone. It’s funny to think that tinkering with a device you bought breaks copyright law, of all things, but, hey: That’s America.

Since James Billington, the Librarian of Congress, (in consultation with Maria Pallante, the Register of Copyrights) decided to end the phone unlocking exemption last fall, many consumers and their technological advocates have been peeved. A January petition on whitehouse.gov titled “Make Unlocking Cell Phones Legal” netted some 114,000 signatures, and earned an official response from the White House.  

“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,” R. David Edelman wrote. Edelman is a senior White House advisor on digital innovation on privacy. He continued:

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,” he wrote. Since then, the Federal Communications Commission (FCC) has talked to wireless carriers, reportedly working out a deal for them to give their consent to unlocking.

See, unlocking your phone is only legal under the DMCA if your carrier gives you permission to do it. So the FCC has worked to secure blanket permission from carriers for consumers who wish to unlock their phones—and, not only that, but it wants carriers to tell consumers when their phones are eligible for unlocking.

Carriers aren’t thrilled about that plan. So, yesterday, though he’s been in office for only 11 days, the new FCC Chairman, Tom Wheeler, sent the industry trade group for mobile carriers a letter. That group is called the CTIA, which used to stand for the “Cellular Telecommunications Industry Association,” and now doesn’t stand for anything. The group calls itself “The Wireless Association.”

“For eight months,” Wheeler wrote, “the FCC staff has been working with CTIA on an amendment to your Consumer Code in which this industry would address consumers' rights to unlock their mobile wireless devices once their contracts are fulfilled.”

The FCC and the CTIA are in agreement about how the unlocking policy should work, Wheeler writes, except for one thing: Whether carriers should “affirmatively notify consumers when their devices are eligible for unlocking and/or automatically unlock devices when eligible, without an additional fee.” 

Wheeler hopes very much that detail can be included: “Absent a consumer’s right to be informed about unlocking eligibility, any voluntary program would be a hollow shell.” And he wants the carriers to adopt it. “Enough time has passed, and it is now time for the industry to act voluntarily or for the FCC to regulate,” he writes.

The CTIA has already issued a non-response (The Verge has it at the end of their report) to Wheeler’s letter. The FCC can’t make law, but it can make regulation, and if the industry declines to notify consumers, it will be interesting to see how the FCC makes that provision possible. Regardless, Wheeler’s letter inches consumers closer to being able to use phones they paid for and own in the way they should be able to use them.