CAN CELL PHONE USERS UNLOCK THEIR DEVICES?

Why Does It Matter?

In the past few years, the United States has passed or proposed all kinds of controversial legislation, all of which are aimed at strengthening Intellectual Property (IP) rights. Historically, the online community in the U.S. has already been subject the United States Digital Millennium Copyright Act (DMCA) since President Bill Clinton signed it into law on October 28, 1998.  the Included in this list is the famous (or infamous) Stop Online Piracy Act (SOPA and the Protect IP Act (PIPA). Specifically, the purpose of SOPA is to debilitate those who place unauthorized-copyrighted materials online from profiting or reaching their targeted viewers or consumers. As an example, the DMCA requires search engines such as Google to block the appearance of webpages which contain unauthorized materials. Most online users already encountered the familiar image of a webpage that is blocked when either searching for their favorite movies, shows, or musical artists.

Lately, there has been more public resistance against the DMCA due to the recent ban on smartphone unlocking. “Unlocking” is the process that allows a person’s smartphone to be used on other networks besides the network with whom the smartphone was purchased. The controversy comes from the functionality and benefits that come out of being able to unlock your smartphone. Particularly, this abilty to switch carrier is valuable for any person who finds himself/herself flying out of the country on business or vacation. Currently, having a locked phone forces this group of people to either purchase a new phone from a carrier abroad, to surrender to these limitations and remain incomunicato for the remainder of their stay, or to brave the international costs and fees associated with the plan that is “tied” to their smartphone (Currently, the cheapest international AT&T dataplan is $30 for 120MBs). However, people with an unlocked smartphone can simply purchase a new plan with a provider abroad and use the smartphones they already have (For example, those who travel to the UK can purchase a sim card and unlimited data, 5,000 text, and 600 talk minutes for 19 British Pounds or approximately $28 USD). So then why is it illegal to “unlock” your phone? And who does this law benefit?

How Did "Unlocking My Phone" Become Illegal?

First, it is important to note that smartphone unlocking didn’t suddenly become illegal due to an Act of congress. Rather, unlocking a cellphone would have always been illegal but for the decision by the U.S. Copyright Office and the Librarian of Congress to grant an exemption to the DMCA’s “anticircumvention” provisions. The “anticircumvention” provisions of the DMCA basically make it illegal to create, use, or make available any process which bypasses a security measure that is put in place to protect copyrighted material. The effect of this provision, which became law in 1998, likely did not contemplate the unlocking of cellphones. However, due to the very broad drafting of the statute, this activity falls within the DMCA. Traditionaly, the U.S. Copyright Office issued rulings every three years which granted an exemption to consumers and which stated that the restriction of locking a phone served no other purpose but support a business model rather than protect access to a copyrighted work. Back then, unlocking your phone simply meant that you were violating the terms of your contract. As a result, the only thing cellphone users would have to worry about is what the consequences were under the contract (such as having your service cut off). In January 2013 and presumably under pressures by the cellphone industry, the Librarian of Congress (the head of the U.S. Copyright Office) allowed the exemption, which allowed consumers to unlock their phones, to expire. This means that persons seeking to unlock their phones themselves could face criminal penalties. As a result, it is adviseable that at least for the time being, consumers forgo using third party services or software to unlock their telephones. However, carriers and manufacturers can still legally unlock phones for their customers.

So What is Going to Happen?

Currently, there is a lot of outcry against the expiration of the exemption. President Barrack Obama and the White House have declared their stance against this policy and has endorsed cellphone unlocking. Similarly, politicians are starting to make moves to legalize cellphone unlocking. Three senators have recently started pushing to pass the Wireless Consumer Choice Act (find a copy of the act here http://publicknowledge.org/wireless-consumer-choice-act). This legislation would instruct the Federal Communications Commission to order wireless service carriers to allow consumers to unlock their phones. However, it makes it clear that this legislation won’t overwrite the terms of your contract. So if your contract requires 2 years before unlocking is available, then you will still be in breach of that contract if you unlock your phone beforehand, which is the same result that existed when the exemption to the DMCA was available. The idea is that consumer choice promotes competition. In addition and as general policy, the average consumer should not be afraid of facing criminal charges when contemplating switching carriers by unlocking a phone.  Nonetheless, the language of the Act is a very broad instruction and as such it will be up to the FCC to determine how complicated or elaborate of a procedure must be available to consumers in order to unlock their mobile telephones. Additionally, this only addresses one uncontemplated issue of the DMCA.  Many others push for a revision of the DMCA in order to modernize it. Regardless of which approach occurs, it is evident that there is strong pressure to do something about the current restrictions.

What Can I Do To Unlock My Phone Now?

There are a variety of options available to mobile phone users to unlock their phone. Although the first one is not so much a solution as much as a preemptive approach, the second approach will most likely remain the most prevalent form of unlocking even if the Wireless Consumer Choice Act is passed. Once again, this is because the Act will not alter any “unlocking” terms of your contract.

The first thing a consumer can do is to simply purchase an unlocked phone to begin with. Doing so would allow a consumer to take advantage of all the benefits that come from having an unlocked phone without any adverse treatment, penalties, or plans from a wireless service provider. However, normally these unlocked phones are more expensive to being with. A buyer should really consider whether the price difference merits the added travel use or possibly just 2 years of waiting. Particularly, the price difference becomes a great one if you can afford to be locked in to a two year contract as opposed to just getting the phone by itself.

The second approach, and the one I used before traveling to Europe last year, is to approach your carrier directly and ask them to unlock the phone for you. So far, there is varied success depending on the phone and carrier you’re using but many of them are willing to unlock your phone with relative ease, especially if you’ve already finished your two year contract. In my case, I had an iPhone 4 and it took approximately 3 weeks to unlock. This approach is still available to consumers even after the expiration of the exemption.

By: Alejandro Felce, March 12th, 2013.