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A Disconnect on Cellphone Unlocking Legislation

When the White House embraced an online petition earlier this month to legalize cellphone unlocking, it marked another key milestone in the rising importance of technology policy issues.

The petition, which garnered more than 114,000 signatures, was created to draw attention to an obscure rule change preventing consumers from unlocking mobile devices bought after January. The effort gained steam quickly, prompting statements of support from the White House, the Federal Communications Commission and a host of lawmakers.

In the few weeks since then, allowing consumers to unlock their cellphones and tablets so they can switch wireless carriers has quickly become the default position on the Hill. Members of the House and Senate have rushed to offer legislation, but the bills each tackle the problem differently, with varying permanence. The range of approaches and the debate over their efficacy demonstrates again how tech issues span multiple policy areas and remain highly opaque to all but a handful of stakeholders.

In a rule change that took effect Jan. 28, the librarian of Congress narrowed an exemption in the 1998 Digital Millennium Copyright Act that previously allowed consumers to unlock their mobile devices. Obama administration officials criticized that move on March 4, saying it went against the administration’s own earlier internal recommendation, and pledged to back a narrow legislative fix.

Some mobile devices are sold unlocked, while others require the installation of a software program or other means to circumvent a pre-assigned wireless carrier.

The rule change meant that consumers who unlock their phones could be open to potential criminal liability, according to Derek Khanna, a former staffer for the House Republican Study Committee. Khanna teamed up with entrepreneur Sina Khanifar, who created the petition on the White House website.

The first lawmaker to offer legislation to legalize cellphone unlocking was Sen. Ron Wyden, D-Ore., one of the few senators who has backed the tech industry’s calls for changes to copyright law. Wyden’s bill would create a permanent DMCA exemption for cellphone unlocking, negating the need for the librarian of Congress to renew the exemption every three years. Thus far, his legislation has gained the most support.

“Overall, [the Wyden bill] is the best way forward so far,” said Sherwin Siy, vice president of legal affairs for the consumer advocacy group Public Knowledge.

Khanna called Wyden’s bill “probably the best of the bunch,” although he noted that the legislation wouldn’t legalize the underlying technology that allows consumers to unlock their cellphones.

But a Democratic aide said Wyden’s bill could create trade issues because of pacts such as the recent free-trade agreement with South Korea, which include prohibitions on new permanent DMCA exemptions. Under the free-trade agreements, the aide said, additional exemptions must be made by the librarian of Congress through the process established by the DMCA every three years.

Another bill, offered by the two chairmen of the Judiciary committees, Sen. Patrick J. Leahy, D-Vt., and Rep. Robert W. Goodlatte, R-Va., would instead temporarily reverse the librarian of Congress’ decision on the cellphone unlocking exemption, while sending the issue back to the LOC for review after the normal period. The aide said the librarian is likely to revisit the issue within one year as part of an expedited review of whether the exemption should apply to tablet computers.

Backers of the Leahy-Goodlatte bill argue that it is the most straightforward way to legalize cellphone unlocking immediately, and they point out that its congressional support — including other influential Judiciary Committee members — gives it greater odds of passage than some of the alternatives. The bill would address the issue at the regulatory level without affecting the underlying statute, which Khanna labelled “a complete cop-out.”

“We would like to see a permanent fix to this,” Siy said. “The process has been a nightmare to go through every three years. We don’t think that’s a good permanent solution.”

A third bill, sponsored by Sens. Amy Klobuchar, D-Minn., Mike Lee, R-Utah, and Richard Blumenthal, D-Conn., would address the issue using telecom law by directing the FCC to issue rules that would require that wireless carriers permit subscribers to unlock their phones. Siy said the bill’s approach could help by preventing phone companies from locking mobile devices in the first place but would also leave the DMCA untouched.

However, Siy and his organization have consistently pushed for overhaul of the DMCA, which they argue is outdated and overly favors certain intellectual-property-based industries over others. Khanna was less certain about the need for dramatic action, but he also said there is an opening for “an enterprising legislator that introduces legislation that actually fixes the problem.”

He could be referring to Rep. Jason Chaffetz, R-Utah, who announced his intent to introduce legislation in the coming days to address the issue. Chaffetz has shown a willingness to side with the tech industry on copyright issues in the past, and an affinity for working with tech-savvy colleagues across the aisle. Other lawmakers who have spoken out in favor of legalizing unlocking mobile devices include House Oversight and Government Reform Chairman Darrell Issa, R-Calif., and Rep. Jared Polis, D-Colo.

Which road lawmakers ultimately choose to take will have a significant effect on both consumers looking to switch wireless carriers, as well as the future of copyright law. With even those writing the bills divided over their potential effect, it’s clear that deciding exactly how Congress will legalize cellphone unlocking will be even tougher than choosing a wireless carrier.

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