Good news, consumers: You may soon be able to legally "unlock" your cellphone again, allowing you to switch carriers. But don't get too excited -- you may lose that privilege again as soon as next year.
The U.S. House of Representatives is expected this week to vote on a bill that would reverse a regulatory ruling in late 2012 that made unlocking illegal. While the bill is expected to pass, the fix it offers is temporary. The Librarian of Congress, who issued the ruling, is slated to revisit the subject again next year -- something that the bill would explicitly allow.
With everyone from President Barack Obama to tea party-affiliated conservative groups to liberal leaning consumer interest organizations in favor of consumers having the right to unlock their phones, the modest and temporary nature of the current bill is simply astonishing. And it makes me wonder why policymakers aren't pushing for a simpler, permanent and much more consumer friendly solution -- a ban on the locking of cellphones in the first place.
Cellphone manufacturers and wireless carriers often use software "locks" to bind devices to particular networks, preventing them from taking their phones with them if they change carriers and forcing them to pay roaming charges if they use their phones overseas. The carriers defend locks as a key part of their business models, allowing them to offer exclusive phones to draw new customers and preventing customers from breaking the long-term contracts they agree to in exchange for discounted phones.
The locks are protected by copyright law under a provision that makes it illegal to circumvent barriers that prevent users from copying or modifying software and other protected works. After lobbying by consumer advocates, the Librarian of Congress granted an exemption to the law that permitted the unlocking of cellphones starting in 2006.
But in late 2012, the Librarian of Congress, citing the growing number of unlocked devices on the market, reversed course and eliminated the exemption for cellphone unlocking. That move caused an uproar. A petition submitted to the White House pushing for the exemption to be reinstated drew more than 100,000 signatures in little more than a month. Since then, policymakers on both sides of the aisle have publicly backed that position.
But more than a year has passed since the ban on unlocking took effect and policymakers have done little. Late last year, the Federal Communications Commission got the big carriers to agree to unlock some phones, but the agreement is voluntary and extremely limited. Carriers will only unlock devices if consumers ask and only after they've completed their contracts or, in some cases, been a customer for a year.
The reprieve offered by the House bill is similarly modest, and doesn't address the core problem.
Those who have championed the right to unlock devices make the powerful and reasonable argument that because consumers own these devices, they ought to be able to use them as they wish, as long as what they're doing is legal. There's nothing illegal or illegitimate about switching carriers or using a cellphone sold in the U.S. overseas, so why should an arguably misapplied provision of copyright law stand in the way of such activities? Consumers can use their laptops on any Internet service they want; why can't they have the same freedom with their smartphones?
There are more ambitious proposals in Congress than the bill that will get a vote this week. But given the general dysfunction of Congress these days, it's doubtful they'll pass anytime soon.
That's why I favor a different, simpler approach. The Federal Communications Commission, which regulates the wireless carriers, should simply ban the locking of devices. The FCC could take that action using its current authority; it wouldn't need an act of Congress. And it would have legitimate reasons for doing so. Not only would the action explicitly enshrine a position the agency supports, it also would promote competition, one of the agency's core missions.
Such a move might not be backed by everyone who supports unlocking. Some of those on the right might see it as an unwelcome interference in the free market. But carriers would still be free to offer discounted phones and could still enforce long-term service agreements by charging early termination fees. And they could still offer exclusive devices; a ban on locked phones wouldn't require manufacturers to offer their phones through all carriers.
To be sure, a ban on locking cellphones wouldn't be a panacea. Because the carriers use different cellular technologies and because they often offer service on incompatible frequencies, some phones that are made to work with a particular network still couldn't be used on a different one.
But such a policy would fix perhaps the most despised provision in the copyright law -- and it would do so quickly, easily and permanently.