Slashdot Mirror
US Government May Not Be Able To Fix Cell Phone Unlocking Problem
An anonymous reader writes "We recently discussed what appeared to be a positive response from the Obama administration on the legality of cell phone unlocking. Unfortunately, the Obama administration may not be able to do anything about it. It has already signed away our rights under a trade agreement with South Korea. Lawyer Jonathan Band, who works for the Association of Research Libraries, wrote, 'The White House position, however, may be inconsistent with the U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the Korea-U.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party. This demonstrates the danger of including in international agreements rigid provisions that do not accommodate technological development.'You can read more about this issue in a short eight page legal primer by Jonathan Band (PDF). An interesting, related note that the U.S.-KOREA FTA is possibly inconsistent with our domestic patent/drug law in the Hatch-Waxman Act as well. The trade agreement requires us to grant injunctions until the patent is invalidated as opposed to thirty months under current domestic law."
There. All is said.
Religous speak to God. Insane are spoken to by God. When all shut up, one can finally hear Shostakovich in peace
The US Government has been out-lobbied by Korean lobbyists? Or is Samsung's plan much bigger than Apple thought?
KORUS does allow for administrative procedures like the DMCA's rule-making to adopt temporary exemptions, but not permanent ones. The challenge before Congress is to devise a permanent exception for cell phone unlocking that does not breach the obligations under KORUS and other similar free trade agreements
The US constitution allows temporary copyrights; Congress has managed to ignore the spirit of the constitution by extending copyright terms 20 years every 20 years. How about we just do the same with DMCA exemptions?
Palm trees and 8
It seems that these days IP legislation tries to swallow everything. Nothing is safe from IP laws.
It's time to reverse that trend, most of the DMCA should be considered unconstitutional anyhow. If someone sold me a device, why can't I tear it apart to see how it was built?
Patents and copyrights exist for making sure no one needs to keep trade secrets. The intent of those laws is to let people learn about the technical details behind the technology.
Having laws that restricts the liberty of learning goes against every principle of a civilized society.
Nobody is ever responsible for anything and eveyone's hands are always tied, that's the American way.
other countries have laws that phones must be unlocked or the carriers must give out the unlock code.
We need to end carrier only phones and phones with all the carrier software forced on you that you have to hack your own phone to remove it you should have the choice of how much of the software that you want. Visual voice mail (good), a app that let's you see how many mins / data / txt of your plan that you used and uses there meter (good) other apps not so much.
Who would have guessed?
There's a lot of laws on the books that are never enforced. There's roads where everybody drives 15 miles per hour over the speed limit and nobody ever gets a ticket because everybody knows that it's perfectly safe and that the limit is just set too slow. There was recently a law passed in Florida where all non-US citizens had to have an international driver's license to drive in the state. They forgot about all the Canadians who go there every winter. Once they realized the problem, they told all the cops to just ignore the law. This is just without even mentioning the completely ridiculous laws that are still on the books from hundreds of years ago. Just because a law is on the books, doesn't mean they have to enforce it. If there's no mandatory minimum punishments required as part of the trade agreements, judges could just let people off with a very small fine, and cops would learn that it wasn't worth their time to charge anybody for breaking the law.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
Congress can pass the law; they have that power, and no mere treaty can take it away.
What happens, if Congress passes a law that is in conflict with the treaty is that the most recent of them is in effect in the US.
As for our international obligations, we have a few choices: We can withdraw from the treaty. We can seek to renegotiate the relevant part of the treaty. Or we can ignore the conflict. If we ignore it, there may be some enforcement mechanism intended to encourage us to do something, but depending on what it is, we may be able to ignore that too. After all, the US is in violation of the Berne Convention and we've ignored that successfully for over a decade now.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
>US Government May Not Be Able To Fix Cell Phone Unlocking Problem
The U.S. (FCC/FTC?) can STOP the problem of locked phones by issuing an order saying that locked phones cannot be sold starting 5 minutes from now. The phone manufactures will starting doing back-flips unlocking new and current phones so fast the earths spin might slow down some.
I really don't see why phones are locked in the first place. You're already tied to the carrier with a legal contract. There shouldn't need to be a technical measure in place to make sure you don't take the phone to a different carrier. If you try to leave before the contract is over, there's already high fees for breaking the contract. If you choose to not pay those fees, it would probably look bad on your credit rating. After your contract term ends, you should be free to do whatever you want with the phone. Actually, If they now have the system in place to block stolen phones, the major providers could probably place the phones from non-paid contracts on a list where they would refuse to allow the phone be used until the contract is paid in full.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
Invade another country? "No problem. We'll just have to change the rules."
Make it legal ( again ) to unlock phones? "We want to do it but our hands are tied."
Of course it is bullshit!
They are not doing it because their corporate owners don't want them to. They just want to make it seem like they are on our side. If they are, then who is this mystical other side that makes this impossible. This is bullshit.
I find it really ironic that it is a "Free Trade Agreement" that is preventing an activity that fundamentally is "Free Trade" (you can sell an unlocked phone to someone on another network).
I believe it comes down to the fact that governments support business at the expense of small business and DIYers. Probably because small business can't aford lobbyists.
http://yetanotherpoliticalrant.blogspot.com
It is the carriers which are responsible for the locking. The suppliers don't give a rat's tail about whether a phone is locked or not. The carriers make the requests and the suppliers deliver on that request. Suppliers have no dog in the fight over locked vs. unlocked beyond the mild fact that a locked phone will likely stay in the region in which it was procured. But people who relocate and wish to take their phones with them are an insignificant minority.
I get the feeling this is a blame and information deflecting piece intended to point people in directions which are not relevant.
Too many people hate on Obama for him to accomplish much.
Time is what keeps everything from happening all at once.
This is the most worrisome part of the story:
The draft text for TPP is secret, but the U.S. proposal for the IP chapter was leaked two years ago. The leaked proposal contained KORUS's closed list of exceptions.
How can the US sign a treaty that is secret from the citizens of the US? The government shouldn't be allowed to sign (or even consider) a trade treaty with secret terms. How else can the people know if they want to be party to the treaty?
Because, fuck you, that's why.
Give me Classic Slashdot or give me death!
Remove U.S. troops from South Korea. North Korea invades South Korea. One or the other will win; either way, there's no longer an entity called "South Korea", so the treaty is void.
Sure, deaths would be in the millions, but we'd be able to move from carrier to carrier then. And isn't that the most important thing?
(for any morons reading; yes, this is just humor, not an actual avocation of war to fix our unlocking problem)
Carrier lock is simply a way for them to try to abduct more customers. I use abduct very purposefully here.
abduct [ab-duhkt] verb (used with object) 1. to carry off or lead away (a person) illegally and in secret or by force, especially to kidnap.
There is no technical or contractual reason to keep you locked. The OP is correct in that you sign a binding legal contract when entering a contract with a mobile carrier, but when that contract is up, they want you to stay, not run off to some n-contract or other carrier with the phone you purchased (albiet at a subsidy) from them. If their contract did not cover the subsidy discount on the phone, then they need to redo their math and stop devices that are now legally owned by others hostage.
In addition to this however, there is no incentive for handset makers to push to change it. If you cannot continue to use your phone on a carrier you like, what do you do? You purchase a new phone and the handset maker profits as well.
None of this fosters competition or aids the consumer. It is solely a self serving policy by those in (capitalistic) power.
Silence is a state of mime.
IANAL but why would a treaty with Korea have any bearing on a contract dispute between an American consumer and an American cellphone service provider? Sure the provisions of the law may appear to be in conflict, but they apply to different jurisdictions.
As if the US has never unilaterally ignored provisions of a treaty when it suits us? Not seeing why this should stop the POTUS, assuming he really gave a damn about the rights of anyone making less than $1mil a year.
Even if a treaty forbids Congress from correcting DMCA, it should be easy to do something about it. FCC could ban the manufacture, sale, and trafficking in devices which transmit on licensed spectrum, if those devices require DMCA violations in order to repurpose.
That wouldn't be as good as repealing DMCA, but it would make DMCA irrelevant to this narrow case. Can't unlock iPhones? Ok, unlocking iPhones will remain illegal. But it'll also be illegal to sell locked iPhones. If someone wants a locked iPhone, sell 'em a locked iPod Touch instead, implement the phone functionality using wifi.
Of course: fuck the treaty. Repeal DMCA instead. And fuck all these narrow DMCA-amending proposals which are limited to "wireless devices."
"Believe me!" -- Donald Trump
These are agreements, not treaties (the pesky "A" in the KORUS FTA). They have not gone through the Senate as treaties. There was legislation to approve the agreement, which says
“No provision of the [KORUS] Agreement, nor the application of any such provision to any person or circumstance, which is inconsistent with any law of the United States shall have effect.”
These agreements themselves are, as I understand it, the equivalent of a Presidential executive order; subject to being canceled at the stroke of a pen.
If they limit the President, it is an excuse, not compulsion.
I am not a lawyer, and this is not legal advice.
That's what the two-year contract is for -- to amortize the cost of the $600 phone over 2 years while still giving them (Verizon, et al) service profits.
Fair enough, if that's how the cost plays out so you don't have to pay for a laptop equivalent up front. But you are still buying it, so it should be yours at the end.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
My point exactly about the subsidized phoned. And if for some reason they have not recouped their costs for providing the phone at a discount through their contract, that is a failure of their MBAs, not the customer. They chose the terms, not the customer.
Silence is a state of mime.
I really don't see why phones are locked in the first place. You're already tied to the carrier with a legal contract. There shouldn't need to be a technical measure in place to make sure you don't take the phone to a different carrier. If you try to leave before the contract is over, there's already high fees for breaking the contract. If you choose to not pay those fees, it would probably look bad on your credit rating. After your contract term ends, you should be free to do whatever you want with the phone. Actually, If they now have the system in place to block stolen phones, the major providers could probably place the phones from non-paid contracts on a list where they would refuse to allow the phone be used until the contract is paid in full.
It has nothing to do with the contract with you, it has to do with the contracts they have with the manufacturers. Locking is about tying the handset to the carrier, not you to the carrier.
Example: you could unlock the iPhone as soon as it showed up on other carriers. Even ATT would do it while you were still on contract, if you asked.
Phones that are still on exclusive contracts tend to be non-unlockable.
Having "unenforced" laws on the books that everyone breaks is dangerous because it allows police to selectively enforce those laws when they need to punish a specific individual or group (cracking down on homeless people for loitering for example, or the overly broad "computer hacking" law which was used to go after Arron Swartz).
Support Right To Repair Legislation.
Even before the contract ends,. you should be allowed to do whatever you want with the phone. If I sign the contract and decide I want to use my Nokia 3110. I should be allowed to do that.
The phone that I got with the deal I should be allowed to give to my kid to play games on. I should be able to sell it.
If I make more money on selling the phone then I did by paying you, then that pricing policy of yours is YOUR problem, not mine.
It is not just locking. Bundled sales is the other part that is bad for people.
Don't fight for your country, if your country does not fight for you.
Just make it legal to unlock phones that were not made in South-Korea, and keep it illegal to unlock South-Korean ones. There, problem solved, everybody happy.
Barring a contractual agreement that is made with your cell phone provider that otherwise prohibits it (which is good for 2-3 years), it is explicitly legal in Canada to unlock a cell phone.
So why can't the USA adopt a similar solution to this problem as their neighbors to the north?
Otherwise, I can foresee a booming business in Canadian border-towns for people living in the states that are also near the border, where they could entirely legally unlock phones for people visiting from the USA (for a price), since it is evidently not illegal in the USA to own or possess an unlocked cell phone, and you cannot, in general, be held liable for doing something that happens to be against the law in one specific jurisdiction when you are not actually in that jurisdiction (or else, for example, people from California who gamble in Las Vegas could get arrested when they return).
File under 'M' for 'Manic ranting'
Who is so fucking stupid at this point to say "oh, Obama may not actually be able to do anything about it anyway"? This is the administration which has essentially defined saying they'll do one thing, and not doing it. It's also the administration which has said they think it's cool to drone strike its own citizens.
Why the fuck do you think they'd do anything more than placate people at this point? Asinine.
~/ssh slashdot.org ssh: connect to host slashdot.org port 22: too many beers
It's done all the time. *see: Geneva Conventions
You should choose another Korea..
It is perfectly legal for the President to signa treaty that says "We will send all of our mushrooms to Canada."
Then Congress can pass a law that says "We will not send ANY mushrooms to Canada."
In such a case than it is illegal to send mushrooms to Canada, no matter what the treaty says. Canada can sue us in international court, and that court may assign sanctions to us, but they can not force us to send them all our mushrooms.
excitingthingstodo.blogspot.com
Change the treaty terms. Tell South Korea to agree to the changes or the whole deal is off. Oh, and about those troops we have in your land ...
now we need to go OSS in diesel cars
Congress can fix this problem. Congress just doesn't want to fix this problem. See the difference?
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Absolutely incorrect.
You really need to learn the difference between self executing and non-self executing treaties. Many treaties themselves are most certainly be law, without subsequent legislation.
Also, they are broader in purview even than federal statutes. Take a look at Missouri v. Holland
Yes, IAL
Are there no phones for sale in regular electronic shops in the US? Over here we have some carriers with locked phones in combination with longterm contracts but most people just buy the manufacturer labeled phones (these are pretty clean installs with the usually manufacturer skins) since the "subsidised phones" are just expensive loans.
There's no reason the TPP treaty can't be amended to require signatories have no anti-circumvention laws. The president has the power to get on this right now. He could do it today. It would be a totally legitimate political decision, too. "The people are saying this sucks. Let's try to not suck."
If such a change makes the agreement unacceptable to the other parties, then I guess "free trade" isn't very important, so I don't want to hear any more excuses about how these treaties are a vital priority.
If such an agreement is accepted and conflicts with earlier agreements, then you go resolve the earlier agreements which would then have become out-of-date. The fact that it's incompatible with old treaties or a not-yet ratified treaty is irrelevant. If someone had said the people didn't have the right to pass the 21st Amendment based on the argument that it conflicted with the 18th Amendment, they would have been called out as absurd.
If the president uses the free trade agreements as an excuse for not pressuring Congress to repeal DMCA, he'll get away with the inaction, but nobody should let him get away with this sort of rationalization for it. It'll be a lie, and everyone will know it, and we'll call him on it. Mr. President, don't do it unless your goal is to discredit yourself.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Even a self-executing treaty can be overridden by a federal statute, though the Court generally won't read a statute as having this effect implicitly, only when the statute expressly states its intent to override the treaty provision.
While GP was incorrect to state that treaties are "LESS powerful than Law", they still are not akin to the Constitution which cannot be overridden by statute, so the idea present in TFS that the existence of the treaty commitments makes it impossible for the unlocking problem to be addressed by the US government remains wrong.
Does anyone actually think the administration had any intent of following through on what it said? This was a PR stunt to try and look like good guys. They knew very well that there were hiccups because of the treaty but, more importantly, that the change would never get past congress in the first place.
Why are people still so naive about how the government in this country works? Maybe I'm overly cynical, but I have a preeeeeeeeetty solid track record of predicting how these things will work out. The majority of people seem to think that these things are still decided by law and principle and opinion. They're not. They're decided by money and political wrangling.
Who would benefit from the ability to unlock phones? Consumers/voters. Who would lose? Cell Companies. Which is more important, looking cool to voters, or continuing to get the truckloads of money that an American politician must have to have even a ghost of a chance of winning an election? The answer is obviously the money, because without the money you can't get in the game in the first place. This form of corruption is so widespread that there really isn't a significant body of lawmakers who are really making an issue out of things like this, so why take a stand on something that you will never have to answer for in an election and will absolutely 100% lose you money that you need to win the election in the first place?
Absolutely incorrect.
You really need to learn the difference between self executing and non-self executing treaties. Many treaties themselves are most certainly be law, without subsequent legislation.
Also, they are broader in purview even than federal statutes. Take a look at Missouri v. Holland
Yes, IAL
Then you should be aware that KORUS FTA is not a treaty.
To the original poster, read the Constitution (Article VI, in this case)
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The crucial thing is that you left out the part about ratifying treaties (Article II, Section 2)
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;...
That is a high bar, but it's what you have to do to have a Treaty become law. Once that happens, the President and Congress cannot ignore it. If it is just something the President signs, then he (or a later President) can sign something different.
"...U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the Korea-U.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party."
1) the TPP is merely PROPOSED. It's complete bullshit to say we can't just CHANGE OUR PROPOSAL. Jesus.
2) US Law > treaties (at least within the US). Congress has to basically pass a law authorizing any treaty. That law can be rewritten, struck, etc just like ANY OTHER US LAW, as far as its applicability to US citizens.
Simply, the administration's position on this is an outright, simple, lie.
You know, government has been full of crap for at least the last 70 years, but within the last couple of administrations they aren't even bothering to try to conceal it anymore, they just state what they want us to believe. Their partisans cheerfully man the barricades to defend (whatever it is, even if it contradicts their party's basic premises), while the opposition fulminates pointlessly all over the web - in the meanwhile the government goes back to whatever it was doing anyway, uncaring.
-Styopa
I am altering the deal. Pray I don't alter it any further.
They chose the terms, not the customer.
Yet they still call such an unnegotiated, single-sided agreement a "contract"...
That's what the two-year contract is for -- to amortize the cost of the $600 phone over 2 years while still giving them (Verizon, et al) service profits.
So why doesn't my mobile bill drop to half or less after the amortized phone is paid off?
'The tyrant will always find pretext for his tyranny.' - Aesop's Fables
For the same reason petrol isn't reduced in price at the pump the day crude prices drop but is increased the day crude prices go up: fuck you
"Wait. Something's happening. It's opening up! My God, it's full of apricots!"
That's what the two-year contract is for -- to amortize the cost of the $600 phone over 2 years while still giving them (Verizon, et al) service profits.
Fair enough, if that's how the cost plays out so you don't have to pay for a laptop equivalent up front. But you are still buying it, so it should be yours at the end.
You are almost there...
The carriers are not amortizing the phones. From a legal perspective, the ownership of the physical device is transferred at the start of the contract when the person pays the agreed upon price. Sales taxes on the phone are paid at the beginning, and any future payments are against the service being provided, not the phone itself.
Therefore, the phone is yours at the beginning, regardless of the terms of the service contract.
For the phone to be yours at the end, you would have to be paying against an amortized debt, and you would be gaining equity in the property until the debt is paid in full. The carriers do NOT want to do it this way because such a transfer incurs a different set of laws and obligations.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
While it may not be true in the letter of the law (IANAL, so I don't know) it's certainly true that *in spirit* you are amortizing the cost of the phone over a multi-year contract.
Thus, if you cancel the contract before the phone subsidy has been paid off, you are on the hook to pay an extra penalty to cover the cost of the phone subsidy.
Of course, the extra fees and requirements for data plans and such mean that the carrier generally makes *far* more than the equipment subsidy over the length of the contract.
Many people misunderstand the supremacy clause.
The clause reads:
This is often misread as putting treaties on a par with constitutional amendments and making them trump federal law.
In fact the clause puts treaties on a par with federal law, below the constitution, and makes the whole set of three (constitution, law, treaties) trump state law where they conflict with it.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
The anit-circumvention rule has gone off the rails. One thing is breaking e-book DRM for the blind to read them, or ripping DVDs for backup. Then you are actually copying something.
Now phone unlocking is different: you are not actually copying *anything*. This should not be a copyright issue at all. It's one thing if they want to make a rule to let a manufacturer limit what you can do with a product you bought, for their business interests. Try to get that law to pass, etc. I'll hate you, but less. Sneaking it in through copyright, however, is just dishonest and disgusting. It also demonstrates how the world of copyright is much more restrictive than the laws that govern the physical world.
I also wonder if I took the ROM and flash chips out of an iPhone and overwrote the content with my own OS, if that would still be legal. Is the tenuous copyright argument tied to the OS & software, or do they not even bother trying to point to a copyrighted work?
... choose to ignore your rights when Congress fails to respect them?
"A public interest coalition known as Citizens Trade Campaign published a draft of the Trans Pacific Parnership chapter on “investment” revealing information about the “international tribunal” which would allow corporations to directly sue governments that have barriers to “potential profits.”
This is exactly the type of domestic situtaion that allows real estate developers to sue state or local governments for inflated valuation based on the claim of 'lost future profits' when eminent domain is used to condemn property, even though the purpose requires that the action be in the better interest of the general public. I've never understood why the courts don't make it clear that an investor's freedom to risk does not imply an inherent 'right' to expect a profit, but now the Obama administration appears likely to codify it for transnational corporations?
Additionally, I've never been able to fathom the short-sightedness of the U.S. ratifying trade agreements that allow companies in other countries that lack the same environmental protections, equivalent to our Federal EPA's, to import goods here without meeting the same standards or suffering economic sanctions that would offset the advantage. If we made international polluters pay for the access to our markets, we could use the fees to support clean development overseas. Unfortunately, if we subsidize clean operations here, other countries can argue for the right to sanction us under the rules of the WTO treaty.
These international treaties, that promote commerce while diminishing respect for environmental justice, hurt us all in the long run. It makes the task of promoting social justice harder as well. Focusing on trade while subordinating the health of the environment makes it easier for governments to avoid the inevitable questions of sustainability or population growth.
We already live in a world where the West promotes the futility of population control because it's just to difficult to imagine trying to convince people that we're actually subject to the same constraints that science, religion or globalization are exacerbating for the rest of the life.
I wonder who will die last, with all the toys... the lucky stiff.
no, it demonstrates the danger of allowing corporations to limit national sovereignty by lobbying for and getting so-called "Free Trade Agreements".
Every single one of them is designed not to promote or encourage trade but to restrict the ability of governments of the signing nations to make laws or policies that interfere with corporate interests.
which is why they're giving nice-sounding names like "Free Trade Agreement" rather than "Stealth Takeover of Government Act"
The ultimate solution is to forbid wireless carriers from selling phones. Does Comcast/Time Warner sell televisions? Do they sell laptops? No, that would probably violate antitrust law. Yet we allow wireless carriers to sell phones.
We don't need new laws to make locking/unlocking legal. We need to remove the monopoly incentive that makes the practice profitable.
We need to end carrier only phones and phones with all the carrier software forced on you that you have to hack your own phone to remove it you should have the choice of how much of the software that you want. Visual voice mail (good), a app that let's you see how many mins / data / txt of your plan that you used ...
The best way to do that for now is for people to quit choosing the carriers that require contracts, stuff phones full of crap then lock them down. If enough people stopped "voting" with their wallets in favor of those practices, the big companies would eventually change their tune.
It does mean (as in my case) going with what the person can afford rather than the absolute latest technology... However, IMHO it's more than worth it knowing I fully own my phone, I'm not locked to a contract or charged for a bundle of data/txt/minutes I'll never use just to get what I do need, and my funds support a company (in my case Ting) that favors our freedom rather than the ones that favor only whatever gets them more money. Complaining about how our nation's government-corrupting cell companies shaft their customers, then giving them money to continue doing it doesn't make a lot of sense in my book unless there are no other options whatsoever.
Now mostly at Usenet:comp.misc & SoylentNews.org (it's made of people!)
Missouri v. Holland said that a STATE law can't over-ride a federal law.
Yes, the state department then went and made a treaty to convince the SCOTUS that the Federal government had the right to pass that law. But the treaty was supporting the law, not the other way around.
As for your mis-formed idea of self-executing treaties, they only exist in cases where previous LAWS were previously passed to give the federal government the right to pass that treaty.
As in, law over-rides treaty.
At heart your opinion fails to understand the basics of American separation of powers. The people amend the Constitution (highest authority). Congress passes the laws under those Amendments. The Executive Branch administers the laws. Courts judge the laws (against the Constitution),
The President can not over-ride Congress by signing a treaty.
If your rather twisted version of government applied in the US, then Barack Obama could for example, make assault weapons illegal simply by including a paragraph in a treaty with Mexico.
No, he can't do that, because there is NO such thing as a 'self-executing treaty" unless congress has already explicitly passed a law allowing it.
excitingthingstodo.blogspot.com
Fixing cell phone locking is a technical problem, not a political one.
More to the point, if the treaty invalidates the Bill of Rights, an open-ended document due to the presence of the 9th Amendment, the treaty would not be valid in the first place. At least some applications of unlocking phones would have to be considered an exercise of reasonable conduct rights arising under the 9th Amendment.
We know from history that treaties can not infringe fundamental rights. Consider the following:
Two states refused to ratify the original Constitution. Other states only ratified after men of honor such as James Madison, whose promises were trusted, promised to add a Bill of Rights. All of the states knew that they could withdraw at any time, should these promises not come to fruition, as it was neither militarily nor politically feasible (at that time) to force any state to be part of the Union.
If these states were prepared to trust the authority of the federal government, including the authority granted by the treaty power, then there would have been no need for a Bill of Rights. However, the history shows that the states felt a strong need for a Bill of Rights, and hence they were not prepared to trust the federal government with the powers granted in the original Constitution.
This history clearly shows the authority of the Bill of Rights is intended to trump the powers granted in the earlier parts of the Constitution, including the treaty power.
Simple logic confirms this (essentially a proof by contradiction argument): if the treaty power could trump the Bill of Rights, then any right could be infringed merely by writing a treaty to do it, and no rights would exist. However, the Bill of Rights provides for the existence of rights (and in fact makes the list of possible rights open-ended), we have a contradiction, and the original assumption that the treaty power trumps the Bill of Rights is shown to be invalid.