H.R. 1123 says unlocking a cell phone is permissible if it is “initiated by the owner…by another person at the direction of the owner, or by a provider of a commercial mobile radio service or a commercial mobile data service.”
That’s seems to be pretty straightforward permission for anyone to unlock their phones. What’s got advocates upset, however, is the bill also explicitly prevents unlocking cell phones for the purpose of “bulk resale.”
The Electronic Frontier Foundation says preventing bulk resale means businesses that purchase phones, unlock and resell them won’t fall within the proposed law.
That’s a problem since, for one thing, bulk resellers of unlocked phones help extend the useful life of old handsets reducing electronic waste. Prohibiting bulk resale also means that copyright law is being used to prevent business models that don’t actually infringe copyright, the EFF says.
DMCA strikes again
Cell phone unlocking in the U.S. is currently prohibited under Section 1201 of the Digital Millenium Copyright Act. The DMCA makes it illegal to circumvent digital locks such as digital rights management (DRM) on e-books and movies or software that ties a cell phone to a specific carrier’s network such as AT&T or Verizon.
The idea behind the DMCA is to prevent copyright holders from getting ripped off by piracy. But in the case of cell phones it’s hard to understand how unlocking a cell phone to work on another network has anything at all to do with copyright.
Section 1201 of the DMCA is revisited every three years by the Librarian of Congress. In 2012, the Librarian decided that cell phone unlocking wasn’t permissible under the DMCA and the ruling went into effect in 2013.
So for the past year or so, cell phone unlocking in the U.S. has been technically illegal. The House bill seeks to change that, albeit imperfectly.
H.R. 1123 builds on unlocking momentum initiated by the Federal Communications Commission in late 2013. In November, FCC Chairman Tom Wheeler sent a letter to mobile industry group CTIA calling on carrier’s to adopt a new cell phone unlocking policy or face FCC regulations.
Under pressure, the CTIA announced six principles that detail how carriers will unlock devices for customers after their initial service contracts expire.