On January 26, 2013, the Librarian of Congress issued a ruling that made it illegal to unlock new phones. Unlocking is a technique to allow your phone to use a different carrier. Doing so could place you in legal liability for up to 5 years in jail and a $500,000 fine (specifically the Librarian of Congress allowed the existing exception to lapse). This prohibition is a violation of our property rights, and it makes you wonder, if you can’t alter the settings on your phone, do you even own your own phone?
The ruling is a clear example of crony-capitalism, where a few companies asked for the law to be changed to their pecuniary benefit despite the invasion of our property rights, its impact upon consumers, and its impact upon the overall market. This decision creates higher thresholds to entry for new market participants, which hinders competition and leads to less innovation.
Overall this is a clear example of copyright law run amuck – the underlying law was created to protect copyright but it’s being applied in a manner that no legislator expected in 1998 when they voted for the bill. The underlying law, the Digital Millennium Copyright Act (DMCA), was passed three years before the iPod, six years before Google Books and nine years before the Kindle. Now that it's clear that the DMCA is being interpreted in a way clearly contrary for which it was passed, it’s incumbent upon Congress to act.
When the Librarian of Congress (who had previously provided exceptions allowing this activity) made on this issue on October 28, 2012 – Congress refused to act. When that ruling went into effect months later on January 26, 2013 – Congress refused to act. On January 27, 2013, I published an article in the Atlantic, The Most ridiculous law of 2013 (So Far): It is Now a Crime to Unlock Your Smartphone that brought more attention to this issue and received over a million hits (even briefly knocking the website offline). Despite concern from across the country, online and in the mainstream media – Congress refused to act. In my follow-up article I called their failure to address this issue “a dereliction of duty.”
Since that time I have helped spearhead a White House petition on this matter. That petition on cellphone unlocking, currently at over 110,000 signatures, appears to be the first petition to achieve the 100,000 threshold for a White House response (until recently the petition threshold was 25,000). This accomplishment demonstrates that people are interested and willing to mobilize on this important issue. This show of force of over 100,000 people makes it clear: the people will not stand for laws that impede their personal liberty and stifle innovation that are enacted as a result of crony-capitalism.
Support has come from an unlikely group of allies. Among the many actors, Vint Cerf (co-creator of internet), the National College Republicans, and the Tea Party Nation came out in favor of reversing the ban on unlocking.
People have asked me to specifically address what this means and what can be done. When the White House weighs in on this matter - and considering they answered a petition to build a Death Star I think they would have to address an issue of this serious nature - it will then be incumbent on Congress to act to address this problem. In my Atlantic piece, The Law Against Unlocking Phones is anti-Consumer, anti-Business, and anti-Common Sense, I explained:
“We must ask ourselves: "What specific limitations upon our personal freedom and liberty are we prepared to accept in the name of achieving the goal of protecting intellectual property?" Some limitations may be sound, and Congress should debate them on the record. Obviously, we do not have the right to copy books, movies and music and sell them. But other restrictions are invasive and have nothing to do with protecting intellectual property (like unlocking and jail-breaking your phone or adaptive technology for the blind to read). Restrictions upon the use of technology should receive strict legislative scrutiny because of its impact upon innovation and our personal freedom.”
This is a problem of Congress’s own making – now they should fix it. On February 21, 2013, when over 100,000 people petitioned their government for redress on this issue, it is well past time for Congress to act.
To those who want to get involved to support property rights, innovation and the free market – ask your Member of Congress:
1) Why do the blind have to ask for an exception to use adaptability technology for e-books? Why is developing, trafficking, or selling that technology still illegal? As a stated in my previous piece, “Can you imagine a more ridiculous regulation than one that requires a lobby group for the blind to come to Capitol Hill every three years to explain that the blind still can't read books on their own and therefore need this exception?”
2) In a world where we can't unlock our own phones - who really owns our phones?
3) And most egregiously, ask them, for our thousands of service members who deploy abroad and have to unlock their phones to use them in theater, why are they criminals for unlocking their own phones without permission?
In my latest piece for the tech blog Boing Boing, Taking on Real Reform in a Post-SOPA World – Let’s Start With Cellphone Unlocking, I prepared a letter for Congress:
That we should have to petition our own government to remove these items from a “technological blacklist” is very unfortunate. If you want to stand up for property rights and against crony capitalism, you can sign the White House petition until Saturday night at midnight here.
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