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Cell Phone Unlocking Debate Highlights Trade Negotiation Process Problems

March 18, 2013 , ,

The issue of cell phone unlocking has been hot for the past
month.  The White House response to
the over 100,000 person petition to allow for the unlocking of cell phones has
led to a flurry of legislative proposals in Congress and broad interest in a
quick solution to the issue.

Public
Knowledge has argued
that this is an opportunity for Congress to do two
things: First, make the exemption for cell phone unlocking permanent by
including it the current statute; and second, begin a broader conversation
about what other reforms to the Digital Millennium Copyright Act (DMCA) should
be considered.  Public Knowledge
has also made the strong argument
that the concerns raised about free trade agreements should not stop Congress
from doing its job: to set the policy of the United States.  The United State Trade Representative
(USTR) can always be instructed by Congress to update our trade
agreements. 

However, the concern over conflicting with free trade
agreements highlights a larger concern about how Congress has lost control over
parts of its role as the creator of US policy.  The United States must stop legislating through trade negotiations.
USTR negotiations processes notoriously lack transparency and do not include
all stakeholders. While consumers and public interest groups are often kept in
the dark as these are negotiated, it is not uncommon for corporate stakeholders
to have opportunity to join trade delegations for treaties and trade
agreements.  It is no wonder that
the intellectual property sections of our agreements do not include a process
for updates to the exemptions list. 
Content Industry advocates such as RIAA and MPAA would see any such
updates as an invitation to other exemptions and broader discussions about
reforms to the DMCA that allow consumers to other pieces of technology that
they purchase in other legal ways the consumers want. Public Knowledge has documented this concern
recently through the Trans Pacific Partnership treaty negotiations. Instead,
the public is left in the dark as these agreements are negotiated and forced to
accept them completely, or not at all.

Even Congress itself (the public’s representatives who
approve these treaties and trade agreements) is not
given full access
to the deliberations and has introduced legislation to
demand a preview of the negotiations to ensure that they reflect the proper
balance of intellectual property policy between the protections of the artists
and the public interest. When industry is allowed to influence the terms of
trade agreements without the input of Congress and other representatives of the
public, it can lead to the imbalance in policy we now see in intellectual
property policy.  Public Knowledge
has also noted
in the recent WCIT trade negotiations
in Dubai how when the U.S. government
sets the standard for transparency and inclusion, it breeds trust from
important allies and potential allies in the developing world.

When trade agreements and treaties can derail a
simple solution that the White House, bipartisan leadership at the FCC and in
Congress agree on, it is clear that something is wrong with our trade
negotiation processes.  Congress
should take the opportunity of this universal support for cell phone unlocking
as an opportunity to reclaim its policy-making authority and enact a permanent
exemption with instructions to the USTR to follow its lead.