White House Urges Reversal of Ban On Cell-Phone Unlocking

netbuzz writes "In a dramatic call for action directly prompted by 114,000 signatures on a 'We the People' petition, the Obama Administration moments ago urged the reversal of a federal regulatory decision that had rendered the act of unlocking a cell phone illegal. From the reply: 'The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And 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. It's common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs.' Statements from the FCC and Library of Congress indicate that they back the administration's position."

Comments

Re:Political stunt

[Frosty Piss]

He's just politically grandstanding on a popular issue. Nothing will actually come of it, and he knows it.

Stating his position is "grandstanding"? He should be silent on it so you can trash him about that as well?

Link to the response

[entropiccanuck]

Would be nice to have in the summary.

Confused

[karmawhore]

ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs.

Since when do we have that?

Re:Political stunt

[dreamchaser]

The decision was made by the Library of Congress, removing unlocking from the list of things exempt from the DMCA I believe. If they reverse that decision, and it sounds like they will, then the problem is solved unless Congress drafts specific legislation to make it illegal.

The Real News

[CanHasDIY]

The real news item here is that a We The People petition actually garnered a thought-out response, instead of a boilerplate restating of current policy.

First time for everything...

Re:Political stunt

[fuzzyfuzzyfungus]

The decision was made by the Library of Congress, removing unlocking from the list of things exempt from the DMCA I believe. If they reverse that decision, and it sounds like they will, then the problem is solved unless Congress drafts specific legislation to make it illegal.

In addition to(as you say) the matter being out of Congress' hands unless they amend the DMCA to change the Librarian of Congress' role, it is in some sense the purpose of these goofy little exemptions to protect the DMCA as a whole.

How better to protect the fundamental overreach of the DMCA(ie. just by combining virtually anything copyrighted with even a totally crap DRM system, anybody can code rules into their product, with those rules being given force of federal law, or at least serving as a presumptively very strong basis for lawsuits) than by having a tame process for throwing the opposition a bone on a few relatively minor; but culturally, educationally, or otherwise symbolically significant issues?

If the intention were to open a real exemption in the DMCA, it'd be legal to break DRM for any purpose that is otherwise legal, and development, use, sale, etc. of circumvention tools and devices would only constitute aggravating factors in copyright infringement cases, rather than crimes in themselves.

CDMA Carriers

[ZildjianKX]

"...you should be able to use it on another network". Outside the scope of unlocking, but why are CDMA carriers allowed to block activating phones on their network that they didn't sell to you? This seems worse than cell phone locking. Both Verizon and Virgin Mobile both told me I couldn't use an iPhone 4S (CDMA/GSM phone) on their network unless they sold it to me.

Re:Political stunt

[squiggleslash]

According to the White House response, the relevent parties already had a chat with the LoC, at the normal time, who said "No":

The White House's position detailed in this response builds on some critical thinking done by the President's chief advisory Agency on these matters: the Department of Commerce's National Telecommunications and Information Administration (NTIA). For more context and information on the technical aspects of the issue, you can review the NTIA's letter to the Library of Congress' Register of Copyrights (.pdf), voicing strong support for maintaining the previous exception to the Digital Millennium Copyright Act (DMCA) for cell phone carrier unlocking.

Contrary to the NTIA's recommendation, the Librarian of Congress ruled that phones purchased after January of this year would no longer be exempted from the DMCA. The law gives the Librarian the authority to establish or eliminate exceptions -- and we respect that process

The response goes on to say - with some agreement - that the LoC feels that the problem is the DMCA, and that legislation would be a better way to move forward than trying to hack around the DMCA all the time.

So I think the Whitehouse is deliberately avoiding the LoC route. It's not clear whether they would prefer the LoC take action, but it's clear that executive policy is that the situation needs to be resolved permanently, in legislation.

The ban needs revoking, but not for why most think

[mark-t]

In fact, the very reason that they gave for why it was felt acceptable to have a ban on cell phone unlocking (the alleged wide availability of unlocked cell phones as alternatives for consumers) is the very reason that it should *NOT* be illegal for consumers to unlock cell phones.

Because by creating laws which protect locked cell phones from being tampered with by consumers, the system ends up creating an incentive (however slight) for cell phone providers to actually distribute locked cell phones, usually in place of unlocked ones, so that the distributors can enjoy whatever additional benefits that the legal protection actually offers. It's the same problem as with outlawing the breaking of encryption on copyrighted works... the lawmakers end up supporting a particular business model or technology that may not actually reflect what consumers really want. And because providers of such devices have been given some additional incentive to distribute such locked devices, the availability of unlocked devices will gradually start to decrease over time, ultimately leaving a consumer with little to no choice but to either purchase a locked technology, or else ultimately simply not be be part of the modern culture that regularly uses such technologies at all.

It might not be immediately obvious, but it's certainly not rocket science either. I only wish more people could see it.

Insufficient

[Overzeetop]

FTFR: "neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation."

Emphasis mine. It doesn't matter what service agreement you have, it should not be illegal to unlock the phone. If you have an agreement (aka a contract), then the contract language states what you may do with your device to remain within the bounds of the contract, and if you choose to violate that agreement what the injured party is allowed to recover as a result of your default. It's basic contract law - and it's straight forward. The carriers don't really give a rat's ass what you do with your subsidized phone, as long as you fulfill your 24 months of minimum service. If you buy your device, unlock it, and go buy service with another company they really don't care - just as long as your check clears every month for the next two years. Hell, I'll bet AT&T would sell unlocked iPhones for $2000 with no commitment at all ($200+$75/mo for 24 months) if they though they could sell enough of them.

Point is - this should not be a criminal statute. It's contract law; civil stuff - plain and simple.

LoC a regulatory agency?

[Anonymous Coward]

I had to rub my eyes there for a minute, but apparently the DMCA puts exemptions in the hands of the Librarian

I never envisioned a librarian making rules beyond, "keep quiet", "no reference checkouts", and fines for being overdue.

So. Among other oddities we can now cite the DMCA for making the LoC a regulatory agency!

Re:LoC a regulatory agency?

[icebike]

I had to rub my eyes there for a minute, but apparently the DMCA puts exemptions in the hands of the Librarian

I never envisioned a librarian making rules beyond, "keep quiet", "no reference checkouts", and fines for being overdue.

So. Among other oddities we can now cite the DMCA for making the LoC a regulatory agency!

Clearly Congress did not want this power to be in the hands of the Executive Branch. They wanted it out of control of any elected official.
Their reasons for this are not exactly transparent, but I suspect money was exchanged.

Most of the DMCA deals with books, music, movies etc. That much seems sane for the Librarian to handle.

But cell phones only fell under the DMCA due to the necessity to circumvent encryption to bypass carriers locks. This is clearly
a tangential area for the Library, and anytime a manufacturer wants to invoke the DMCA simply encrypting some vaguely necessary key
is all that is needed.

The librarian, with no prior powers of doing anything beyond sushing patrons, is now a quasi-legislative body, which is clearly beyond the
scope of tine institution.

This whole thing could be circumvented by the FCC making rules stating that carrier locked phones may not be imported or sold after
some date. Other countries have done this, and it works fine.

Every valid reason for carrier locks on a phone are obsolete. Carriers can kill IMEIs of stolen phones (including customers who walk away without satisfying their contract on a subsidized phone).

Re:Political stunt

[Artraze]

Technically it's not so much the "Library of Congress" as it is the "Librarian of Congress", a position appointed by the president, that delivered the decision. The current guy was appointed by Regan in '87, and while it's not terribly clear if he was reappointed by Obama or was just left in place, it is fair to say that he answers to President Obama. (There isn't a specific term on the position; it's life by precedent but there's no reason he couldn't be removed.)

The point is, that this is something that the office of the president has a fair amount of control over. If Obama wants it to happen, there's no real reason it shouldn't. As far as the GP's post, a public "urging" could be seen as grandstanding since this would be a bit like your boss holding a press conference to urge you to change your decision on something. However, as it was publicly asked, a public response is warranted.

With that in mind though, if the ban on unlocking isn't reversed, and rather quickly at that, it'll highlight some serious problems with the system and "grandstanding" would be about the nicest thing you can say about it...

Re:Political stunt

[hrvatska]

So the Obama administration shouldn't have taken a position on this? I guess I expect a presidential administration to take a position on important issues regardless of whether or not the issue is controversial. The Obama administration takes positions on plenty of other things that generate political heat.

Re:Political stunt

[Anonymous Coward]

So the Obama administration shouldn't have taken a position on this?

I'm pretty sure anything Obama does is wrong. Even when he does the "right thing" the anti-Obama crowd claims he did it for the wrong reasons. It's a form of insanity.

Re:Political stunt

[Chris Burke]

Yes, I know, it's because of the travesty that is DMCA, but that doesn't make it any less silly.

No, no, of course not, but it does mask it. Like, a man wearing a tutu, bunny slippers, and a singing Billy Bass as a hat is pretty fucking silly. But put that man on a giant merry-go-round with a troupe of nuns yodeling the dictionary backwards, an upside-down pie-eating contest, a poo-flinging monkey in a pope outfit on stilts, and so on, and suddenly the guy in the tutu doesn't stand out so much.

Of course the rational response to all this silliness is to bulldoze the entire merry-go-round into a big hole and cover it with hot tar.

I don't think this is a reversal.

[waspleg]

Read what they say. It pretty much says implicitly that if you've got a contract, fuck you, otherwise "yes we believe". That covers the telecom bases. Wanna get your "free" upgrade as part of your contract and sell it to someone on CL for $200 off MSRP? Still under contract? Then Fuck You.

Wanna switch your phone midstream?

"This is particularly important for secondhand or other mobile devices that you might buy or receive as a gift, and want to activate on the wireless network that meets your needs -- even if it isn't the one on which the device was first activated"

What does that mean? That means AT THE END OF THE CONTRACT otherwise FUCK YOU.

This is way less liberal than people seem to be interpreting it. They've also let the FCC in and other red tape that will ensure this moves at a typical snails pace. Read between the lines, read what it doesn't spell out.

Is it better than nothing? Yes. Is it a full retraction and concession to public pressure? Fuck no.

PS, I read this on Hacker News hours ago.

Re:Political stunt

[msauve]

There is no "they." The GP is wrong. The decision is made by the Librarian of Congress, in accordance with Section 1201(a)(1) title 17, United States Code. Any "they" would have to be referring to the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce, who work in an advisory role.

But, the statement issued by the Library of Congress says about as little as is possible with so many words. I certainly don't get the feeling that the LoC will revisit the decision, and I don't see where the law provides a mechanism for that, even if they wanted to. The statement refers to a benefit to "review and resolution" in the context of telecommunications policy, says the rulemaking "was not intended to be a substitute for deliberations of broader public policy," and ends with a door slam - "The most recent rulemaking has served this purpose."

Re:Political stunt

[Dynedain]

Just like all Congress has to do is let the Patriot Act or the Bush Tax Cuts expire, but you don't see those happening do you?

Re:Political stunt

[msauve]

The President appoints judges, too. That doesn't mean they answer to the President in any way. The LoC was created by Congress. It's part of the Legislative branch, not the Executive one.

Re:Political stunt

[Artraze]

> With the Advice and Consent of the Senate.

"With the Advice and Consent of the Senate." applies to most appointed positions. Take, for example, the Secretary of State, which is a very clearly executive branch, close to the president position. So you can't really infer anything from that.

> It is not clear that the Librarian answers to the President. Nor is it clear that the President can remove him.

That's certainly true, and quite probably why the position's term has defaulted to life. Still, there is more to influence than 'can vs can't fire'. If Obama says "reverse that" it would take some serious balls and justification to tell him off, even Obama doesn't threaten his job directly. And that's what I was touching on with my last statement... If the Librarian can just say 'no' without any accountability, that a pretty serious problem and some amount of shit will probably hit the fan, be it changes to the DMCA in terms of who's in charge of these exemptions, or what accountability the Librarian has to the government/people.

Re:Political stunt

[The Dancing Panda]

I'd just like to see a politician with some convictions and backbone for a change.

See...you don't, really. People with convictions create standstills. What you want is people who are willing to compromise. People who are willing to see both sides of an argument and will try to get the best of all of it. You need "flip-floppers". You need people that will accept that they can't have everything they want. Stop voting for people that are "strong leaders". Vote for people that work well in groups.

Re:Political stunt

[FatLittleMonkey]

A democracy can only exist until the voters discover that they can vote themselves largess from the public treasury.
Paraphrased, Elmer T. Perterson, The Daily Oklahoman

Can you point to three examples where a democracy failed because the masses voted themselves largess? For every single example you give, I'll give three examples of a society failing because the aristocracy voted themselves largess from the public treasury.

If you can't point to three clear examples of democracy ending because "the voters discovered they can vote themselves largess", can you please just stop regurgitating this hateful bullshit fucking meme.

Frankly, most voters are vastly more decent and selfless than those at the top. Which is why political arguments about "belt tightening" and "sacrifice" resonate so much with them. And "fairness" and "family" and "American values". Even when you give them free stuff, you have to couch it in terms of caring for the poor, or creating a decent society, something larger than "hey look, free shit".

Now I'm not saying people are all that bright, hell half of them have below average; which is why they don't always see when politicians and lobbyists using terms like "fairness" and "values" are lying and stealing from them. But they are trying to vote for the right thing. And this constant war against the integrity of the masses (the "takers", the "47%", the "welfare mentality") is not only disgusting, it is the real cause of harm to your nation.

Re:Political stunt

[FatLittleMonkey]

The difference is there's no "pro-cancer" lobby.

There is, however, a large and well-funded anti-handset-unlocking lobby; which is why the LoC reversed their original decision allowing unlocking. So the President coming out in favour of a completely unfunded public group, against the will of the funded business lobby, is actually a much greater gesture than a "Cancer bad, m'kay."