The Story of Cell Phone Unlocking Reform

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This is the story of the Unlocking Consumer Choice and Wireless Competition Act.

In late 2012, the iPhone 5s had just come out, President Obama had been reelected, and the Library of Congress issued an odd ruling. The ruling had to do with the digital locks that are in the software of everyone’s cellular phone, mostly put there by the carrier they originally signed up with for service. The Library of Congress said that consumers could no longer unlock the cell phones they owned in order to take the phones they own to other carriers, even though the Library of Congress had previously ruled in 2006 and 2010 that cell phone unlocking was legal and not a violation of copyright law.

This change in the law came as a part of a process that the Library of Congress has to go through according to the Digital Millennium Copyright Act. Every three years, the Library issues rules on what digital locks people can and can’t legally break under copyright law. And while this convoluted process might seem esoteric, this particular ruling caused a real uproar, especially among several entrepreneurs, DIY-ers, and groups that worked on copyright, like Public Knowledge.

In response to the ruling, entrepreneur Sina Khanifar started a “We the People” petition to the White House in an effort to rally President Obama to oppose the Library’s decision. With advocates like Derek Khana amplifying the call for reform, the petition overwhelmingly succeeded and got the signatures of over 114,000 others who thought it was wrong that their ability to unlock their phones had been taken away. The White House came out in strong support of legislative action to overturn the Library of Congress and directed the FCC to start working on a voluntary solution with cell phone carriers. Still, a real solution that would restore the ability for consumers to unlock their phones was over a year away.

Following the We the People petition, media coverage picked up and several members of Congress introduced different bills, each trying to fix the problem. Early on, lots of people expressed skepticism that anything could succeed in the midst of a divided and highly partisan Congress.  However, many advocacy groups continued to keep up the drum beat on unlocking following the President’s response.

These groups, Public Knowledge among them, continued to have conversations about cell phone unlocking with congressional offices and explained the odd reversal by the Library of Congress, the importance of the issue to consumers, and the problems with the underlying law that causes the whole mess: the Digital Millennium Copyright Act.

One piece of legislation was introduced in both the House and Senate by the respective chairs of the Judiciary Committees, the Unlocking Consumer Choice and Wireless Competition Act. While this wasn’t the most ambitious of the bills available, it still represented a significant, positive change. We decided to support the bill, while also calling attention to the broader problems with the law. As the House version of the bill came to a vote, however, a new wrench was thrown into the works.

One seemingly small change was added to the bill as it passed out of committee and headed to the House floor for a vote. It included language that indicated disapproval of bulk unlockers—people who buy multiple phones and refurbish and repair them so they can then be sold. Whether and why they should be treated differently from individual users was an issue that had gone back and forth before the Library a number of times, and now it looked like Congress might be putting a thumb on the scale for future proceedings. This would set a bad precedent for the next exemption review process in 2015. In the end, this bill would put the law in a place that was actually a bit worse than it was in 2010.

As the House vote on the bill approached, we worked with Representative Zoe Lofgren, who attempted to amend the bill to fix these problems. Unfortunately, those amendments weren’t accepted. Ultimately, the language against bulk unlocking remained, and this unexpected change caused us and others to withdraw our support from the bill. The bill ended up passing the House of Representatives on February 25, 2014 by a vote of 295-114.

This left us in a somewhat uncomfortable, but entirely normal position. Groups that had been negotiating and rallying the grass roots to lobby Congress to pass a cell phone unlocking bill now had a House-passed version, but one that might actually set the goals of unlocking back a bit. However, unlocking advocates dusted themselves off and started to work on getting a good bill out of the US Senate. That was likely going to take a while, since the Senate’s attention in IP issues was taken up with a major patent reform bill, and they weren’t going to be acting on unlocking until after that. It wasn’t until May, after the patent bill was stalled by its opponents, that unlocking came back into the spotlight in the Senate.

It was then that Chairman Leahy of the Senate Judiciary committee started working with consumer and industry groups to draw up a compromise that would be better than the House version of the unlocking bill. Reaching this compromise involved several days worth of emails and phone calls with Senate staff, with suggestions and counter-suggestions of particular language and phrasing—small details that can make a huge difference years later when rules are being made and lawsuits are being filed on the basis of these words. Even the wording of the report that accompanied the bill became a subject of debate and discussion—did one phrase suggest that Congress intended for other parts of copyright law to be interpreted in certain ways? Did a sentence hint that certain non-infringing uses would still be illegal? Meanwhile, other sides of the issue were providing their input as well. Would one of our suggestions amount to Congress declaring that bulk unlocking was completely legal? Even if that’s what we wanted, was that included in the compromise that would-be bill opponents agreed to?

In the end, the Senate version removed the language that was reformers’ sticking point in the House and the legislation quickly moved through the committee without much debate. It then passed the Senate without opposition on June 15, 2014 and headed to the House, where it also passed without opposition last week. It is now on its way to the President’s desk to be signed.

So, for the first time in history, the US Congress has overturned a ruling of the Library of Congress in regards to granting exemptions to copyright law. This complicated process took over a year and a half, but is one of the few bills of substance that has made it to the President’s desk in these starkly divided times.

The overall problem is still present though: copyright law isn’t stopping piracy, but it is preventing law-abiding citizens from fully using their electronic devices. So what is the next step? In this space, we think that’s passing HR 1892, Rep. Lofgren’s Unlocking Technology Act, which will allow all to unlock their devices for legal uses. Greater copyright reform is currently being discussed in the House and will probably be worked on in the next Congress. It is important we not stop after this hard-fought victory: tell your members of Congress to support HR 1892 and make sure to support the efforts of Public Knowledge so we can continue to fight for commonsense copyright reform.

Photo credit: Flickr user akolosov

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