White House supports unlocking cellphones but Congress must update DMCA to fix rule

“…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,” wrote R. David Edelman, senior advisor for Internet, innovation, & privacy, in an official response to a popular e-petition.

In other words, the Obama administration has come down on the side of consumers unlocking their phones. That’s a good thing for every user, from what I can see.

The meat of the reply, in terms of what they’ll actually DO about the e-petition, recognizes the authority of the Librarian of Congress and the validity of the rulemaking process, And as far as I can tell, the statement from the Library of Congress does not indicate that they’ll be changing, which leaves it to Congress to act.

“The question of locked cell phones was raised by participants in the Section 1201 rulemaking conducted between September 2011 and October 2012 by the Register of Copyrights, who in turn advises the Librarian of Congress. The rulemaking is a process spelled out by the Digital Millennium Copyright Act in which members of the public can request exemptions from the law to enable circumvention of technological protection measures. In the case of cell phones, the request was to allow circumvention of technological protection measures controlling access to copyrighted software on cell phones.

The rulemaking is a technical, legal proceeding and involves a lengthy public process. It requires the Librarian of Congress and the Register of Copyrights to consider exemptions to the prohibitions on circumvention, based on a factual record developed by the proponents and other interested parties. The officials must consider whether the evidence establishes a need for the exemption based on several statutory factors. It does not permit the U.S. Copyright Office to create permanent exemptions to the law.

As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy. However, as the U.S. Copyright Office has recognized many times, the 1201 rulemaking can often serve as a barometer for broader policy concerns and broader policy action. The most recent rulemaking has served this purpose.”

To put it another way, the Librarian of Congress heard these concerns during the rulemaking process and decided an exemption from the DMCA was not warranted. This White House response does not change that decision. If you read that letter differently, let me know in the comments.

For this rule to change, the Digital Millennium Copyright Act itself, which led to the contentious rule, will need to be amended.

“In today’s phone unlocking response, the White House took a strong stance in favor of consumers, competition, and innovation,” said Sherwin Siy, VP of Legal Affairs at Public Knowledge, in an emailed statement.

“We’re very glad that the administration recognizes the significant problems created when copyright laws tread upon the rights of consumers to use the products they have bought and owned. These problems will continue, however, so long as the law is written in such a way that laws intended to protect artists can be abused to stifle competition–not just in cell phones, but also in a wide variety of other products and services. Public Knowledge has long sought changes to the DMCA that would prevent not just this problem, but many other abuses. We look forward to working with Congress and the administration to put these changes in place.”

A statement from the author of the petition

“I received a call from David Edelman at the White House, and he gave me the news,” related Sina Khanifar (@sinak), who introduced the e-petition, in an emailed statement.

“I’m really glad to see the White House taking action on an issue that’s clearly very important to people. As the White House said in the response, keeping unlocking legal is really “common sense,” and I’m excited to see them recognizing this. David was enthusiastic about getting this fixed as quickly as possible.

This is a big victory for consumers, and I’m glad to have played a part in it. A lot of people reacted skeptically when I originally started the petition, with lots of comments to the effect of ‘petitions don’t do anything.’  The optimist in me is really glad to have proved them wrong. The White House just showed that they really do listen, and that they’re willing to take action.

While I think this is wonderful, I think the real culprit here is Section 1201 of the DMCA, the controversial “anti-circumvention provision.” I discussed with the White House the potential of pushing to have that provision amended or removed, and they want to continue that conversation. I’ll have exciting news on the campaign to make this happen tomorrow.”

Bottom line?

My read of this response is that the White House essentially has said that it would support “narrow legislative fixes” (over to you, Congress!), encourages mobile carriers to “enable customers to fully reap the benefits and features they expect and notes that the FCC has a role to play.

“From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn’t pass the common sense test,” said FCC chairman Julius Genachowski, in a prepared statement. “The FCC is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers’ ability to  unlock their mobile phones. I also encourage Congress to take a close look and consider a legislative solution.”

To put it another way, thank you for the e-petition, we agree with the principle, but the rule stands unless Congress acts.

There are other aspects of the response, however, worthy of note.

Tech journalist Rob Pegoraro also highlighted an important element of this response: “The White House didn’t just endorse legalizing phone unlocking, it also backed Carterfone for wireless.”

The White House’s response to a petition urging the administration to undo the recent re-criminalization of unlocking cell phones goes farther than I would have thought possible. In it, tech advisor R. David Edelman endorsed legalizing unlocking not just phones but tablets–a type of hardware unmentioned in the petition. Then he wrote this: “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.”

That would be a huge step forward for the wireless business–and would bring it in line with wired telecom, where the FCC’s “Carterfone” decision ended the Bell System’s control of the hardware we could plug into its lines. It’s a big deal for the administration to endorse.

This response is also a modest victory for online activism and open government, as expressed on the We the People platform.

“This is terrific news,” said Derek Khanna, a vocal advocate for this change, in an emailed statement:

“It shows the power of the people to affirmatively act to fix policy rather than just stop bad policy.  We the people have this power when we come together to fight for positive, common-sense solutions. This is a major affirmative victory for the digital generation that stood up against censorship of the internet through SOPA a year ago. The work of this movement is not done, now Congress must follow through – and it will require continued activism and engagement from average people who made this possible.

A free society should not require its citizens to petition their government every three years to allow access to technologies that are ordinary and commonplace. Innovation cannot depend upon a permission-based rulemakings requiring approval every three years from an unelected bureaucrat.  A free society should not ban technologies unless there is a truly overwhelming and compelling governmental interest.”

[Image Credit: Josh Bancroft]

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