Unlocking Your Mobile Phone Closer to Being Legal

For many mobile users, the lock-down policies of wireless providers are a major source of frustration.

“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”

Earlier this year, consumers petitioned the White House asking the president to weigh in with a statement of support for consumers’ right to unlock their phones once they have satisfied the terms of the contract with their carrier.

The Obama administration agreed. “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,” senior White House adviser R. David Edelman said in response to the petition.

[Related: White House: Unlocking Mobile Phones Should Be Legal]

Now Congress is taking up the issue. At a hearing today of the House Judiciary Committee’s subcommittee that handles intellectual property, lawmakers considered a bill that would reverse a ruling by the Library of Congress that struck down an exemption to the 1998 Digital Millennium Copyright Act (DMCA) that had permitted device unlocking.

[Related: Will It Soon be Legal to Unlock Your Cell Phone?]

Judiciary Chairman Bob Goodlatte (R-Va.), the sponsor of the Unlocking Consumer Choice and Wireless Competition Act, argues that the measure, which enjoys bipartisan support, is a common-sense affirmation of consumer rights.

“Americans who have completed their phone contracts or have purchased a used phone want to be able to use their device on their network of choice. They have made that preference loud and clear, and Congress has listened,” Goodlatte says.

[Related: Unlock a Smartphone and You May End Up in Jail]

Not Stopping at Smartphones

In addition to codifying the right to unlock smartphones once the terms of the contract have been met, the bill would direct the librarian of Congress to consider expanding that permission to other mobile devices, such as tablets.

Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, has introduced companion legislation. Other members have introduced similar bills offering alternative proposals to permit phone unlocking.

The current debate stems from a decision last October when the librarian of Congress reversed previous decisions by that office that permitted phone unlocking as an exemption to the DMCA. The librarian of Congress conducts reviews of the exemption every three years.

In the most recent of those triennial reviews, the librarian held that a sufficient variety of phones are currently available on the market unlocked, so that the exemption is no longer necessary. Under that ruling, users are barred from unlocking phones purchased after Jan. 26, 2013, without permission from their carrier.

That decision riled consumer advocates, and a petition launched on the White House website protesting the ruling garnered more than 100,000 signatures.

Witnesses at Thursday’s hearing, representing various industry and consumer groups, were broadly supportive of the legislation. That includes CTIA, the principal trade group representing the wireless industry, whose general counsel, Michael Altschul, said of the bill that CTIA will “support it in the way that it’s narrowly drafted to restore the exemption.”

CTIA has long defended its members’ pricing and usage policies, and is quick to point out that carriers are only able to offer the latest smartphones to consumers at steep discounts when they can secure a commitment to a long-term contract.

Altschul did not waiver from that view in his testimony, and indeed noted that more than 200 unlocked devices are currently on the market, but he said that the bill under consideration would merely “restore the status quo,” so CTIA and its members support it in its current form.

Compromise in Congress?

But that endorsement hinges on the “narrowly drafted” provisions of the bill, which would only overturn the Library of Congress’ 2012 ruling, rather than revise the DMCA to establish a permanent authorization for unlocking phones, as other legislative proposals would.

It also would not apply to tablets and other mobile devices, instead requiring the LoC only to undertake the study weighing the implications of a broader unlocking policy.

In that sense the bill the House panel considered on Thursday represents a compromise, which helps explain the support from both sides of the aisle and from industry groups and consumer advocates, as well as large carriers and small ones, who argue that restrictions on unlocking phones tie consumers to the big, nationwide carriers that have the market clout to negotiate exclusive availability agreements with device makers.

George Slover, senior policy counsel at Consumers Union, the public policy arm of Consumer Reports, says that his groups backs the current bill, though it would like to see stronger consumer protections.

In his prepared testimony, Slover explains that his organization is hopeful that as lawmakers consider a more comprehensive overhaul of the DMCA, they will include provisions to make unlocking permanently legal, and extend it to cover all devices.

“While a permanent solution has obvious advantages over a temporary one, and a comprehensive solution has advantages over a piecemeal one, a temporary piecemeal solution can sometimes be an effective stopgap measure for the time it takes to develop a well-considered comprehensive, permanent solution–as long as the two efforts go hand in hand,” Slover says.

Kenneth Corbin is a Washington, D.C.-based writer who covers government and regulatory issues for CIO.com. Follow Kenneth on Twitter @kecorb. Follow everything from CIO.com on Twitter @CIOonline, Facebook, Google + and LinkedIn.