Unlocking Cell Phones: Legal No More?

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When you want to purchase a new TV, you just go out and choose one without regard for who provides your cable service or how you plan to use it. Purchasers of mobile phones have had similar flexibility for the past few years with the option of unlocking their mobile phone for use with a different service provider. But earlier this year the rules changed, making it illegal to unlock your mobile phone without the carrier’s authorization.

What Happened

The Digital Millennium Copyright Act (DMCA), which was enacted in 1998, makes it unlawful to circumvent technological measures that effectively control access to copyrighted material, including computer programs. Within the DMCA provisions that make it illegal to circumvent access controls protecting copyrighted works, Congress included a rulemaking process whereby every three years the Librarian of Congress, upon the recommendation of the U.S. Copyright Office, determines classes of works that should be exempted from prohibition. In other words, based on the results of the rulemaking proceedings, the Librarian of Congress may grant exemptions under which certain access controls may be circumvented under certain circumstances for a three-year period. A new determination is required every three years to ensure that the rulemaking sufficiently considers changes in technology and markets.

The ability to unlock one’s cell phone was exempted in the 2006 and 2010 rulemaking proceedings, which is why consumers were able to do so legally. However, when the question was revisited during the most recent proceeding, it was determined that the exemption previously granted for unlocking cell phones would not be renewed. Accordingly, it is now illegal to unlock a cell phone without the carrier’s permission.

Obama Administration Supports Making Unlocking Cell Phones Legal

Two of the reasons provided as justification for unlocking mobile phones are freedom of choice and ease of foreign travel.

An unlocked mobile phone can be used with a less expensive carrier or sold to anyone willing to buy it. This has become especially important in recent years as having the newest phone model has become a status symbol for tech-savvy consumers.

When traveling abroad, an unlocked phone can be used with a local SIM card to avoid expensive overseas roaming charges or limited network choices.

In response to the public outcry about the restrictions on unlocking mobile phones, both the White House and the Federal Communications Commission (FCC) released statements expressing support for legalizing the practice of unlocking mobile phones.

In March of this year, the White House Senior Advisor for the Internet, Innovation and Privacy wrote that “The White House agrees … that consumers should be able to unlock their cell phones without risking criminal or other penalties." Former FCC Chairman Julius Genachowski expressed a similar sentiment, stating that “[f]rom a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn't pass the common sense test.” He further noted that “[t]he FCC is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers’ ability to unlock their mobile phones.”

The Road Ahead

For now, the major wireless carriers have taken a consumer-centric position on unlocking phones. AT&T, for example, will allow current customers in good standing to unlock up to five iPhones per year. Verizon Wireless also gives unlock codes to customers with accounts in good standing. And while T-Mobile is willing to offer unlock codes, the company’s restrictions on them are a bit tighter. Given the consumer demand for choice and flexibility with mobile devices—and carriers’ willingness to offer unlock codes—this issue is not something that is going to go away anytime soon.

The next review of the DMCA will be in 2015. As the tech landscape continues to evolve, it’s possible that the Library of Congress’ ruling on unlocking cell phones may evolve with it. Until then, unlocker beware.