So far, cellphone unlocking bills do little to nothing to fix the real problem of anti-circumvention restrictions

March 13, 2013

by Jerry Brito
Technology Liberation Front

Since we last visited the cellphone unlocking question, three bills have been introduced in Congress that address the issue. My sources tell me that forthcoming shortly here on the TLF will be a Ryan Radia patented Radianalysis™ of the bills. While that’s still cooking, though, I wanted to give you my quick impressions.

The bills range from “meh” to crafty.

The first is a bill introduced by Sen. Ron Wyden, which as I said in my last post, “seems to just codify the DMCA exemption that was not renewed in January, so it just puts us back to the state of affairs we had a couple of months ago.” This would be a very narrow fix that would permanently exempt cellphones from the DMCA, but that’s about it. There are also some questions about who is the “owner” of the protected firmware as Ryan will explain in his analysis. Given that what I’d ideally like to see is full repeal of DMCA Section 1201, this bill is just a very modest step in that direction.

The second bill comes from Sen. Amy Klobuchar, which in its entirety reads:

Pursuant to its authorities under title III of the Communications Act of 1934 (47 U.S.C. 301 et seq.), the Federal Communications Commission, not later than 180 days after the date of enactment of this Act, shall direct providers of commercial mobile services and commercial mobile data services to permit the subscribers of such services, or the agent of such subscribers, to unlock any type of wireless device used to access such services. Nothing in this Act alters, or shall be construed to alter, the terms of any valid contract between a provider and a subscriber.

This is a very strange bill. It addresses what is a copyright problem, and a problem created by Section 1201 of the DMCA, by giving new authority to the FCC to force carriers to give up their rights under the DMCA. As I have said before, this is not a telecommunications policy issue, it is a copyright law issue, and that’s how it should be addressed—ideally by repealing the troublesome anti-circumvention prohibitions of which locked cellphones are but one symptom. Also, as written, this bill only applies to carriers, so I wonder if phone makers might still be able to assert rights under the DMCA.

Finally, the third bill is a bill by Senate Judiciary Committee Chairman Patrick Leahy. It is the narrowest possible bill. It is like the Wyden bill in that is rewinds the clock back to the state of affairs before the Librarian of Congress decided to withdraw the DMCA anti-circumvention exemptions for cellphones, but unlike the Wyden bill it is not a permanent exemption in law. It simply changes the rule in the Code of Federal Regulations, something which the Librarian of Congress can undo the next time it reviews DMCA exemptions. As a result, this bill does nothing about one of the most pernicious aspects of DMCA Section 1201, which is that a sole bureaucrat gets to decide what you’re allowed to do with your devices an what you can’t.

Some have suggested that the cellphone unlocking issue is a “trojan horse” actually meant to undermine the entirety of anti-circumvention in the DMCA. If that’s the case, those of us advocating for reform of anti-circumvention have been doing a terrible job of concealing our secert motives. I for one have been pretty clear that all devices should be freed from DMCA anti circumvention restrictions. And the main group agitating for reform is calling itself “Fix the DMCA” and is pretty clear about its goals.

What might well be considered a trojan horse, however, is the Leahy bill, which after all is by the very author of the DMCA itself and co-sponsored by such staunch supporters of SOPA as Sen. Al Franken. Passing it would look like something has been done to address the excesses of the DMCA, but in effect it does not amend that law at all. Not even one word. Not only would the fundamental problems of the DMCA’s anti-circumvention provisions remain unaddressed, it wouldn’t even permanently address the issue of cellphone unlocking.

There is one promised bill outstanding, and that is from Rep. Jason Chaffetz. Reports say that it will mirror the Wyden bill, but I’m holding out hope that it will be a principled stand for property rights. A stand against regulatory restrictions on the devices I’ve bought and paid for and now own outright.

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