Policy: Technology

Examiner Editorial: Time to restore Americans' right to 'unlock' their cell phones

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Congress,Editorial,Digital Millenium Copyright Act,Technology

Here's a little known fact: James H. Billington, the librarian of Congress, can declare common digital technology uses illegal. This means Americans could be doing illegal things with devices like their cellphones without knowing they’re breaking the law. Cellphone "unlocking," for example, is illegal, thanks to the librarian of Congress.

But until Jan. 26, cellphone unlocking was perfectly legal. Unlocking refers to a technique routinely used by millions of Europeans and Asians to switch their phones, which they own, to different carriers. Here, recall that when the iPhone was first introduced, only AT&T provided service, so Verizon and Sprint customers would “unlock” an iPhone they purchased to use their preferred carrier.

Prior to January of this year, Americans could unlock their phones. This was especially useful for members of the military, who could unlock their phones if they couldn’t use their normal carrier when deployed. But the librarian of Congress decreed – in yet another bureaucratic ruling not approved beforehand by Congress – that unlocking is a felony, punishable by up to five years in prison and a $500,000 fine.

The librarian of Congress who, as suggested by the title, generally tends to the Library of Congress, was granted such authority under the Digital Millennium Copyright Act of 1998, which claimed to protect copyrights. “It’s a classic example of crony capitalism, where a few market-dominant companies, each with significant lobbying assets, succeeded in changing the ‘law’ for their own pecuniary benefit, thereby creating higher barriers to entry for their competitors,” said Derek Khanna, a former Republican Study Committee technology expert who is now a visiting fellow for Yale Law School’s Information Society Project.

Unlocking was banned, Khanna said, because cellphone service carriers wanted a legal barrier to new competitors. Conservative groups sent a Nov. 1 letter to House Speaker John Boehner asking for a temporary solution to the ruling, which was introduced by Rep. Bob Goodlatte, R-Va. Another bill introduced by Rep. Zoe Lofgren, D-Calif., would undo the ruling permanently.

“Let’s fix this problem permanently,” Federal Communications Commission Commissioner Ajit Pai said. “We don’t need to have the exact same debate every three years, like an extended version of the movie 'Groundhog Day.' I can assure you that the case for criminalizing cellphone unlocking isn’t going to get any stronger with time.”

Lofgren’s measure would end the prospect of millions of Americans unknowingly becoming felons, and restore private property rights of cell phone owners. "Legalizing unlocking will empower this free market by removing it from Department of Justice intervention and allow consumers to bring over their old phones after their contract has expired,” Khanna said. “Criminalizing innocuous behavior to discourage new market participants is a form of federal intervention into the market."

Or, as someone who likes their current cellphone might say, they should be able to keep their cellphone, regardless of who made it or when their carrier contract expires.

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