The White House has responded in support of a petition seeking to legalize smartphone unlocking, and Sen. Ron Wyden just introduced the first bill. Rep Jason Chaffetz, has said he’s working on legislation as well, as is Sen. Judiciary Chairman Pat Leahy (D-VT).
Several other lawmakers have expressed their support too:
Sen. Amy Klobuchar (D-Minn.), who chairs the Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights, said she plans to introduce her own bill this week. “Consumers should be free to choose the phone and service that best fits their needs and their budgets,” Klobuchar said. Reps. Darrell Issa (R-Calif.) and Jared Polis (D-Colo.) also said during a panel discussion on Capitol Hill that they would support legislation to legalize the practice.
FCC Chairman Julius Genachowski released a statement saying he had “concerns” with the Librarian of Congress removing the exemption for smartphone unlocking–de-linking it from a specific service provider. The Hill reports that Democratic FCC commissioner Jessica Rosenworcel praised the White House’s statement while also suggesting the Digital Millenium Copyright Act–the statute which unlocking your smartphone would violate–might need another look. That’s significant, because contrary to the White House’s statement that the FCC and National Telecommunications and Information Administration should get involved, this is primarily a copyright issue.
To recap, there was a longstanding exemption to the DMCA that allowed consumers to unlock their smartphones without violating the act’s prohibition on circumventing measures intended to prevent copyright infringement. The Librarian of Congress, the authority responsible for granting exemptions, allowed it to expire.
Opponents of restoring the smartphone-unlocking exemption claim it’s a matter of contract rights. Consumers buy service contracts of several years in length and the cell phone itself is heavily subsidized by the provider. But even outside the terms of the contract, unlocking could still be illegal–it’s the DMCA’s anti-circumvention provisions that it violates, even though it’s not exactly clear what copyrighted material is being protected.
The question is whether Congress decides to go for what the White House says it will support–“narrow legislative fixes”–or if it takes on some broader effort to tackle the DMCA along the lines of Rosenworcel’s suggestion. A few industry advocates aside (not even that many–the Competitive Carriers Association favors restoring the exemption), there’s near-unanimity that the exemption should be restored. Jerry Brito, who tweeted earlier today that Wyden’s bill is “super narrow,” makes the case for a broader fix:
Where the White House’s response gets it wrong, however, is in involving the FCC and the NTIA. This is not a telecommunications policy issue; it’s a copyright issue. It’s not just cell phone makers and carriers that are misusing the DMCA. Device makers are employing the same technique to garage door openers, printers, and other devices. Yet that’s how it seems the White House is approaching the issue. …
If Congress acts to fix this mess, it should not limit itself to just a narrow provision that exempts cell phone unlocking from the DMCA. In fact, this is an opportunity for conservatives and libertarians in Congress to act on principle and propose a comprehensive fix to the DMCA in the name of respecting property rights. I for one would love to see that challenge put the President.
Ed Felten agrees, and adds a few anecdotes about how the DMCA chills academic research:
As I observed in 2003, “It is abundantly clear by now that the DMCA has had a chilling effect on legitimate research related to access control technologies.” Yet requests by for research exemptions have been routinely denied, or at best arbitrarily narrowed by the Copyright Office to such an extent that they are rendered useless—even though DMCA threats have been used to silence researchers, including me. For example, in 2001 our team’s study of CD copy protection technologies could not be published as planned because of DMCA threats from the recording industry—the same people who had invited us to study the technologies.
I am not overstating the case to say that the research implicated by the DMCA is critical to democracy. In 2003, Dieboldthreatened to sue students for researching their electronic voting machines. Other vendors followed suit in the years that followed. When my team performed research on widely-used voting machines, we feared a DMCA lawsuit. We knew we were in the right legally and would ultimately win a suit—but we also knew by experience how much damage a “strategic” DMCA threat could do. Ultimately we published a study revealing serious vulnerabilities which played a role—along with the efforts of many others across the country—in changing the national debate about electronic voting technology.
[UPDATE: Derek Khanna, one of the petition’s authors, at NRO on cellphone unlocking.]