Just spent $200 on a smartphone and want to switch carriers? Due to a congressional act, it’s up to the librarian of Congress to decide if and when you’re allowed to “unlock” your phone and get a different provider.
Article I, Section 1, Clause 8 of the Constitution grants Congress power to regulate copyright. But the semi-obscure law that covers phone-unlocking certainly doesn’t date back to the time of James Madison or even Alexander Graham Bell.
The Digital Millennium Copyright Act of 1998 (DMCA) sprung up during the Clinton era and was designed to protect copyrighted content on the Internet and computer devices, while not curbing freedom of expression.
Digital publishers like Constitution Daily and any business that publishes digital content are very aware of the “take down” procedure under the law. If someone has a copyright claim to an image, audio recording, or video, the copyright holder files a DMCA notice and the publisher takes down the content until the issue is resolved.
Another part of the law was designed to curb pirated video, audio, and software on the Internet and on digital devices.
That’s where the librarian of Congress comes in. The DMCA says that the librarian, as the final authority on copyrights, can grant exemptions to the law every three years.
Wireless providers use copyrights to make phones they sell proprietary to their own networks, by requiring a code to “unlock” the phone for use on competitors’ networks. One reason is that a provider may sell a phone to you at a deep discount in exchange for a two-year service contract.
Last October, Librarian of Congress James Hadley Billington (of Bryn Mawr, Pennsylvania) decided to end an exemption that allowed people to unlock their cellphones without their carrier’s permission. The updated rule went into effect in January amid much fuss in the digital world.
So now, if you have a locked phone, you need to negotiate a deal with your provider. Some will provide an unlock code after your current contract expires, or even sooner. (Policies vary among carriers.)
In his ruling, which remains in effect for three years, Billington said today’s consumers can just buy an unlocked phone on the market. Typically, the markup on an unlocked phone can be 300 percent, and you still need to buy a monthly service plan for voice, texting, and Internet access.
But another key point is that Billington’s ruling makes it illegal to unlock a phone without a carrier’s permission.
Since the rules went into effect, the White House received more than 100,000 signatures on an online petition to overturn the ruling.
On Monday, the Obama administration responded with a statement supporting the unlocking of all phones after a consumer meets a contractual requirement. The administration also supports the idea of tablets like the iPad being unlocked in a similar way.
“Neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation,” said David Edelman, White House Senior Advisor for Internet, Innovation, & Privacy.
On Tuesday, Billington responded with a low-key rebuke to the president, saying that the review process that led to the ban was executed within the DMCA.
“Rulemaking can often serve as a barometer for broader policy concerns and broader policy action. The most recent rulemaking has served this purpose,” the statement said.
In Congress, the idea of some controlled form of unlocking is getting bipartisan support.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vermont) supports the idea and Senator Ron Wyden (D-Oregon) is proposing a new unlocking law.
Representative Darrell Issa (R-California), an influential force in Congress, has also supported an unlocking law, but he’s also voiced concerns about a rise in cellphone prices if people can break their contracts with providers.
For now, the librarian’s ruling stands, but the administration did drop one hint about how it could get around Congress to make it easier for people to get unlocked phones.
It said the Federal Communications Commission, an executive-branch agency, should have a role in the process.
The FCC is involved in rulemaking for cellphone plans. One theory, explained on the industry website eWeek, is that the FCC could require providers to give permission to consumers who want an unlock code—no questions asked.
That could be problematic, says CNET’s Marguerite Reardon in her review of the current situation, because the FCC should work to support laws passed by Congress.
Reardon says the actual legality of the DCMA and unlock codes could be questioned.
“Until the law is actually tested in court or until Congress amends it to make it more clear, it's difficult to say whose interpretation is correct,” she said in an article that lays out the broad debate about the issue.
The stakes in the debate are huge. According to Pew Research, more than 45 percent of American adults own a smartphone, and 31 percent have computer tablets. The value of the wireless services industry in the U.S. is about $211 billion.
Scott Bomboy is the editor-in-chief of the National Constitution Center.
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