After White House backing, what's next for legalized phone unlocking?

The White House is against it. The Federal Communications Commission is against it. Even the Librarian of Congress, the person whose original ruling triggered all this fuss, thinks a ban on mobile phone unlocking deserves more discussion.

Despite public outcry, a successful petition drive that resulted in more than 100,000 signatures, and opposition from President Barack Obama’s administration, reversing a ban on mobile phone unlocking won’t be quick or easy.

The ban resulted from a decision by Congressional Librarian James Hadley Billington, who ruled last year that unlocking your phone violates the Digital Millennium Copyright Act (DMCA), a law originally written to combat digital piracy. After a 90-day exemption period, the new rule went into effect in late January, meaning smartphone owners could no longer change part of the firmware code on their devices to connect to other wireless providers’ networks—at least, not finding themselves on the wrong side of the law. You can still ask your carrier to unlock your smartphone—something carriers are often reluctant to do—or you can pay a steep fee for an unlock phone, but those are the only legally approved options.

The Library of Congress makes exemptions to the DMCA once every three years, so it falls to Congress to legalize cell phone unlocking. And that’s something the Obama administration wants to happen: In the White House’s official response to the petition drafted by app developer Sina Khanifar, R. David Edelman, senior adviser for Internet, innovation, and privacy, said the administration supports “narrow legislative fixes in the telecommunications space that make it clear: neither criminal law or technology locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.”

A quick Congressional fix

Thus, the ball would be in Congress’s court to come up with a legislative fix. But that’s easier said than done. Derek Khanna, visiting fellow with the Information Society Project at Yale Law School, says such legislation likely won’t go far enough. This week’s White House response is a “terrific first step,” said Khanna, adding that “there is more work to be done.”

“I don’t know if a narrow legislative fix is the solution here,” Khanna said. “A narrow legislative fix will not deal with some of the issues related to jailbreaking.”

Khanna’s ideal bill would legalize personal use such as jailbreaking and unlocking, as well as technology research, development, and accessibility for people with disabilities (advancements in e-book audio for blind people or video captioning for deaf people, for example).

Electronic Frontier Foundation activist Parker Higgins says legislation narrowly focused on reversing the unlocking ban has a good shot of getting passed, but the real focus should be on Section 1201 of the DMCA. Section 1201 bans “circumvention of copyright protection systems,” with the Library of Congress determining which pieces of technology are trying to circumvent those systems.

Higgins says Section 1201 shouldn’t exist.

“It’s hindering innovation and competition,” Higgins says. “It doesn’t contribute anything to the public interest.”

Khanifar, the petition organizer, is spearheading a “Fix the DMCA” campaign to continue the conversation beyond the cell phone unlocking ban. Khanifar says he expects to launch a Fix the DMCA website on Tuesday afternoon, describing the grassroots effort as something along the lines of the outcry against last year’s Stop Online Privacy Act legislation “to fight and try and make [DMCA reform] happen.” Khanifar’s site will encourage people to write to their representatives in support of DMCA reform.

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