Last Thursday, CTIA, a trade association that represents the wireless industry, announced that five of the nation’s largest wireless providers (AT&T, Sprint, T-Mobile, U.S. Cellular and Verizon) have agreed to a voluntary set of principles that promote the rights of consumers to unlock their cellphones and tablets. While this is certainly a step in the right direction, it should only be viewed as a first, and certainly not a final, step towards allowing consumers to use their devices as they choose. Congress should now pass “the Unlocking Consumer Choice and Wireless Competition Act” that was introduced in both the House and Senate back in March to assure that wireless customers who unlock their phones don’t run the risk of violating federal copyright law.
Cell phone unlocking is the process of taking a phone that was initially manufactured to work on only one particular provider’s network and unlocking the phone’s SIM lock so that it can be used on the network of the customer’s choosing. Wireless providers typically build SIM locks into their phones because they sell the phones at a deeply discounted price in exchange for an exclusive contract. Until now, however, wireless providers have made it difficult for customers to unlock their phones, which is often as simple as entering a code, once their exclusive contracts have ended. But the industry’s new principles commit them to assisting customers in unlocking their phones once they are no longer under contract.
While the wireless providers are now on board, a considerable problem with unlocking cell phones persists. “The Digital Millennium Copyright Act” (DMCA) makes it illegal to “circumvent a technological measure” that controls access to a copyrighted work, regardless of whether the purpose of the circumvention was to violate the copyright. Unlocking a cell phone falls into the category of circumventing a technological measure, but for years was exempted from this law.
However, last year, the Librarian of Congress James H. Billington (of all people!) made the unexpected decision to no longer include unlocking a cell phone on the list of exemptions. That means that unlocking a cell phone merely to change carriers, regardless of whether it’s sanctioned by a wireless provider, is currently a violation of federal law.
Congress appeared ready to overturn Billington’s decision earlier this year by changing the language of the statute, but the momentum has waned in recent months. Hopefully the wireless companies’ agreement, and the White House’s recent call for Congressional action, spurs them to pass legislation.
The cell phone unlocking debate is just the tip of the iceberg of a larger digital-right-to-repair discussion on whether or not the DMCA’s anti-circumvention provision should apply to circumvention if there isn’t an underlying copyright violation. The provision currently provides a number of device manufacturers and authorized dealers a significant advantage over independent repair and service companies on repairs and replacement parts, and that seems far beyond the purpose of the law. It’s time to question whether a broader change to the law needs to be made to allow innovation to thrive.
