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."

Comments

IANAL

[vikingpower]

There. All is said.

Re:IANAL

[FriendlyLurker]

No need to be AL. The TPP is being forced down many countries throats despite many anti-democratic problems by, you guessed it, US special interest groups, their lobby mouthpieces and owned politicians. The US elite feigned "positive response" to our concern over cell phone unlocking only due to the enormous amount of people who cried out - to many to just ignore this time round. Now they are using the TPP stick that they crafted to beat our demand for democratic review of the law down, and put the masses back in our place. Oh, but sure they had no choice... yeah, right.

Re:IANAL

[Jane Q. Public]

"The TPP is being forced down many countries throats..."

BUT... the TPP is not "an agreement" yet, if it ever will be. It is only a proposal (one which the United States actually refused to follow itself, after a bunch of public outcry). So, since it is not yet an "agreement" or treaty, it does not actually block the unlocking of cell phones.

I do not see a problem

[betterunixthanunix]

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?

Re:I do not see a problem

[characterZer0]

Or why not just make a temporary exemption that only lasts until unix time overflows 64 bits?

Re:I do not see a problem

[Sponge Bath]

Because congress is full of 2-bit politicians.

IP legislation is a monster

[mangu]

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.

Re:IP legislation is a monster

[Opportunist]

America is the only country that went from barbarism to decadence without civilization in between.
-- Oscar Wilde

other countries have laws that phones must be unlo

[Joe_Dragon]

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.

Sold out by corrupt politicians.

[fredrated]

Who would have guessed?

Why not just ignore people who break the law?

[CastrTroy]

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.

Re:Why not just ignore people who break the law?

[Aboroth]

That is a perfectly pragmatic viewpoint, and I would take it as well, if the world were sane. Actually, it doesn't only take stupid or crazy people to mess up a system like you describe, it just takes well-meaning people with messed up priorities.

There are already more laws than anybody could ever know about. We are already at the point where it is easy to be breaking multiple laws without knowing it. The police, even good police, like having this situation because it lets them arrest anyone they want at any time, if they can just figure out one of the many laws they are breaking, even if it is a stupid one. Of course they like this situation because it makes their jobs easier, and they think that their "gut feelings" are 100% correct 100% of the time.

Do you really want to live in that kind of world? Well, whatever your answer, you already do. But do you want to make it worse?

Re:Why not just ignore people who break the law?

[Anonymous Coward]

Your naivete shows.

Silly traffic laws are enforced when it suits the police to enforce the laws. Haven't you watched "Law and Order" where laws are stretched to fit people ADA Jack McCoy wants to persecute? Police do this also and use the silliest of laws to facilitate their harassment.. Every regulatory entity does this. To think that they don't is quite pollyana-ish.

Re:Why not just ignore people who break the law?

[richlv]

isn't that one of the basic rules of a police state ? everybody is always guilty. say something wrong, and you get prosecuted.

any incorrect or unfair law should be removed or fixed as soon as possible.

Re:Why not just ignore people who break the law?

[geoffrobinson]

Yes. You would probably like the following book, Three Felonies a Day: http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229/ref=sr_1_1?ie=UTF8&qid=1363180505&sr=8-1&keywords=three+felonies+a+day

Re:Why not just ignore people who break the law?

[realsilly]

Here is the link to the article or law that CastrTroy noted.

http://news.tripwheels.com/2013/02/11/international-driving-permit-required-for-florida/

Re:Why not just ignore people who break the law?

[Bill_the_Engineer]

Florida's international drivers license requirement is an unenforceable law. Florida can't legally make it a requirement because it violates the Genova Convention on Road Traffic. While the law is unenforceable, it is still on the books and can cause grief for international travelers who may want to get a rental car within the state of Florida.

It's not that difficult

[cpt kangarooski]

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.

Re:It's not that difficult

[Attila Dimedici]

It is not clear to me from the article if the treaty specifies the list of exceptions to "circumvention prohibition" as the only exceptions allowable (which happen to be the same as the list in the DMCA) or if it merely specifies the list given in the DMCA (although my reading of the article causes me to believe it is the former). If by some chance the treaty is written in the latter manner, then it is simply a matter of Congress amending the DMCA.
Actually, under U.S. law, the KORUS free trade agreement is not actually a treaty. It is instead a "congressional-executive agreement". That is, rather than being signed by the President and ratified by a two-thirds majority of the Senate it was passed by simple majorities of both houses of Congress and signed by the President. Which means that under U.S. law it is no more binding than any other law. Congress may pass a law changing it at any time (as far as U.S. law is concerned).
I will restate this. The KORUS free trade agreement is not a ratified treaty, which would be negotiated by the President and ratified by a two-thirds majority of the Senate. It is no more "the law of the land" than any other law passed by Congress and, under U.S. law, may be amended by Congress at any time (subject to the same provisions as any other law). If Congress passes a law modifying the agreement (which is what this is, it is not actually a treaty), that modification supersedes the previous law (agreement). If South Korea was unaware of this, they should pay closer attention to U.S. law before signing an agreement with the U.S.

Re:It's not that difficult

[Attila Dimedici]

According to Thomas Jefferson that is not the case, "...stipulations by treaty are forever irrevocable but by joint consent." That is, agreements such as the KORUS free trade agreement may be dropped by either party whenever they become inconvenient, but an actual ratified treaty may only be changed by mutual agreement between the two countries.

Re:It's not that difficult

[cpt kangarooski]

No, treaties are inferior to the federal constitution. The constitution says so, in Article VI. Treaties are superior to state constitutions, however. (Also according to Art. VI)

What? Yes it can.

[PlusFiveTroll]

>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.

Re:What? Yes it can.

[CastrTroy]

I like this idea. You can't make it legal to unlock phones, but you can probably make it illegal to sell locked phones in the first place. I already stated elsewhere in these comments that it's unnecessary to lock phones in the first place since there's already a contract with fees for breaking it, and the have the technological capability to blacklist phones that are still under a contract.

Re:other countries have laws that phones must be u

[CastrTroy]

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.

Bullshit!

[Anonymous Coward]

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.

Free Trade? Yeah right.

[kramer2718]

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.

This has nothing to do with the carriers

[erroneus]

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.

Re:This has nothing to do with the carriers

[Somebody Is Using My]

Arguably, it is to the supplier's advantage if the phone is locked and can never be unlocked because then that phone is irrevocably tied to one carrier. If the end-user wants to go to another carrier, they /have/ to buy a new phone; they can't unlock their existing phone and take it with them. This means an additional sale for the supplier.

In actuality, I'd guess that the number of end-users who actually DO bring their phones with them to a new carrier is such an insignificant amount that it's not worth them getting involved.

I'm not entirely sure what the advantage to the carrier is, however. The end-user is already tied to the carrier by a contract and the costs of said contract more than subsidize the cost of the phone. Is it the worry that at the end of the contract the end-user will take the (over)paid-for phone and switch to another carrier? The fact that the phone is already locked doesn't seem to be stopping this; anecdotally, I know people who purposely switch (or take a new contract with the same carrier) just to /get/ new phones. I'd reckon most people who stick with a carrier past the length of the initial contract do so because of a lack of viable options or because the inconvenience of switching outweighs the benefits.

Or is there a significant number of people who exit the initial contract prematurely (either paying off the fine or trying to get out of it entirely), signing up /only/ to get a "cheap" phone? Frankly, given how upset so many of the customers are over this issue, this would be an easy way for the carriers to garner some good will; announce that in future all cell phones are unlocked from the start (with appropriate small-text notice that, yes, you are still liable for the cost of the phone if you try to sneak out of your contract).

Secret Treaty?

[hawguy]

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?

Re:Secret Treaty?

[Impy the Impiuos Imp]

It isn't secret anymore -- when they actually vote on it. But then there's no time to examine it, much less get public commentary, much less habe 6 months for people to think it over.

These are the same people who brought you the "we have to approve the health care bill to see what's in it."

Re:other countries have laws that phones must be u

[Hatta]

Because, fuck you, that's why.

Re:other countries have laws that phones must be u

[wbr1]

This is already done. All carriers keep a list of phones with bad ESN/MEID numbers. THey become bad through being reported lost or stolen, or having an outstanding balance. This even keeps sales of phones between customers of the same carrier down. You cant just buy a sprint phone from someone and expect it to work on sprint, if the ESN/MEID is blacklisted its a no go.
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.

US Government can do plenty

[Cajun Hell]

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."

Re:other countries have laws that phones must be u

[Impy the Impiuos Imp]

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.

Selective Enforcement

[Comboman]

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).

Re:So what happened?

[Xest]

What happened is the US government found a good excuse for saying one thing and doing another to make it appear like it was on your side without that actually being so.

Welcome to politics.

Re:other countries have laws that phones must be u

[houghi]

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.

Treaties are subordinate to laws, not the reverse

[gurps_npc]

Treaties are LESS powerful than Law, not more so. No treaty can make us do anything at all - countries break treaties all the time (see North 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.

NO IANAL!

[Greyfox]

Right, none of that!

Congress can fix this problem. Congress just doesn't want to fix this problem. See the difference?

Re:Different jurisdiction

[Freddybear]

All that says is that treaty law supersedes state law. It says nothing about whether a treaty can alter domestic contract law.

Re:other countries have laws that phones must be u

[mrbester]

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