Why Won't the Government Let You Unlock

February 27 [Wed], 2013, 0:53
Suppose you're upset with your cell-phone carrier, and you'd like to switch. Under current law, you canwhen you leave. But if you want to take your phone? Forget it.

Ever since an obscure rule protecting the process of "unlocking"last month, it's been illegal to port your device to another carrier. In fact, any American who's ever unlocked his or her phone is now at risk for steep fines, court battles with carriers, and even jail time.

But a team of copyright activists has been lobbying the government to keep unlocking legal. And early Thursday morning, they won a small victory: Their petition to the White House finally , meaning it must now be met with an official government response.

"A hundred thousand people should be taken seriously," said Derek Khanna, one of those leading the charge. "There hasn't been a real concise explanation about why individuals who unlock their own phones [should] be legally liable for up to five years in prison."

In particular, the petition requests that President Obama ask the Library of Congress to reconsider its stance on unlocking--and if that doesn't work, to press Congress for legislative action. An ideal bill would protect four activities, Khanna told me: adaptive technology for the blind, such as the kind that scans books and handwriting into text computers can display; backing up DVDs to your computer; your phone so that you can modify it beyond the manufacturer's preferred limits; and unlocking.

Hold on a second. How did the Library of Congress gain the power to control what you do with your devices? It comes down to a provision in the Digital Millennium Copyright Act that lets the Librarian of Congress set exemptions for things that "circumvent" anti-piracy systems. Unlocking and gaining top-level privileges to modify your phone have so far been protected by these exemptions--and in fact, jail-breaking your phone will still be legal into 2015. But these exemptions have to be renewed every three years. This time, when the unlocking exemption came up, the Library of Congress demurred. (A call to LOC wasn't returned.)

This means wireless companies that don't like the idea of customers leaving their service with their phones can theoretically sue -- though an industry spokesperson stressed that what companies really object to is how customers often think they've been boxed in.

"Consumers have a lot of options when they pick a phone," said Amy Storey, The Wireless Association's assistant vice president for public affairs. Storey explained that because users can legitimately unlock their phones at the end of their contracts -- or simply buy an unlocked phone from their carrier at the beginning of their agreement -- the real problem lies with those who think they should be able to unlock their phones whenever they want.

Obama could still rebuff the petitioners, but he would be taking an unpopular position, according to Khanna.

"If the White House wants to defend that position, that's up to them," Khanna said. "I don't think they will defend that, but they could."