Phone Unlocking Becomes Illegal Tomorrow


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Unlocking your cellphone without the permission of the original service provider will technically become a crime in the US tomorrow. That said, the chance of a prosecution taking place, let alone being successful, seem slim.

The legalities are covered by the Digital Millennium Copyright Act, which brought in the principle that it’s illegal to circumvent a technological measure designed to protect copyright — even if you don’t actually go on to breach copyright.

The Librarian of Congress has the power to decide which devices and systems are excluded from the DMCA. The list of exemptions is frequently updated as new technologies emerge.

Phone unlocking hasn’t been mentioned on the list in the past, most likely because there’s no obvious link to copyright issues. However, a group including the Consumers Union and MetroPCS (which obviously wants phone users to be able to switch away from the biggest carriers) asked the Librarian of Congress to add unlocking as a specific exemption. That may have been designed to head off the possibility that carriers might start trying their luck with using the DCMA to scare off people providing unlocking services and solutions.

It seems that this tactic may have backfired as the Librarian of Congress agreed to the exemption with a major loophole. For the rather baffling reason that it was needed “to align the exemption to current market realities”, it said the exemption would only apply to phones already bought up to and including 90 days after the exemption took effect. That 90 day period ends tomorrow.

According to the Librarian of Congress, there’s no need for an exemption for future phone sales because there are so many unlocked phones available that banning unlocking doesn’t harm consumer interests.

On a purely technical legal ground, the decision seems to be a gift to the major carriers. Until now anyone arguing the DCMA outlaws phone unlocking would have to argue their case from scratch. Now lawyers could easily argue that if the Librarian of Congress has specifically limited the exemption to sales before a specific date, it’s only logical that unlocking phones sold after this date should be specifically considered as a breach of the DCMA.

What this actually means in practice is less clear-cut. It certainly seems likely that if the carriers starting threatening people with the DMCA, many will be scared off from offering unlocking technology. However, if somebody is willing to take their chances in court and make prosecutors argue that unlocking a phone is a crime, it could be a crapshoot as to whether the judge agrees that this is an appropriate subject for copyright law.

(Image credit: NeuLex via Creative Commons license)





13 Responses to Phone Unlocking Becomes Illegal Tomorrow

  1. If you read the actual decision you’ll see there is a *HUGE* exception. Legacy phones still can be unlocked. Want to switch carriers? Fine. Buy a phone off craigslist or ebay? Fine. Want to buy a new phone, pay the ETF and switch? Most likely fine. The only thing it seems to accomplish is preventing you from unlocking when you travel internationally. Lots of carriers will do that for you anyways. Seems like this is mostly a lot of noise over nothing.

    • “However, with respect to “legacy” phones – i.e., used (or perhaps unused) phones
      previously purchased or otherwise acquired by a consumer – the record pointed to a different
      conclusion. The record demonstrated that there is significant consumer interest in and demand
      for using legacy phones on carriers other than the one that originally sold the phone to the
      consumer. It also supported a finding that owners of legacy phones – especially phones that
      have not been used on any wireless network for some period of time – may have difficulty
      obtaining unlocking codes from wireless carriers, in part because an older or expired contract
      might not require the carrier to cooperate.
      Despite the increasing availability of unlocked phones in the marketplace and the trend
      toward wireless carriers’ unlocking phones in certain circumstances, NTIA favored a broader
      exemption. It asserted that the unlocking policies of most wireless carriers are not reasonable
      alternatives to circumvention because many such policies apply only to current customers or
      subscribers, because some carriers will refuse to unlock devices, and because unlocking policies
      are often contingent upon the carrier’s ability to obtain the necessary code. Further, “NTIA does
      not support the notion that it is an appropriate alternative for a current device owner to be
      required to purchase another device to switch carriers.”
      The Register concluded after a review of the statutory factors that an exemption to the
      prohibition on circumvention of mobile phone computer programs to permit users to unlock
      “legacy” phones is both warranted and unlikely to harm the market for such programs. At the
      same time, in light of carriers’ current unlocking policies and the ready availability of new
      unlocked phones in the marketplace, the record did not support an exemption for newly “

    • The way it’s implemented is a flat deadline tomorrow. That means that a phone sold on Monday can never be legally unlocked without the carrier’s permission, even if you buy it second hand in a few year’s time.

  2. I’m stuck on the notion that it is a ‘measure designed to protect copyright’ in the first place… Just how does locking a phone to a network achieve that? Using a network of your choice with hardware you purchase involves no copyright infringement. So what gives?

  3. It is a crap argument, but the basis is that to unlock the phone you must access the software to change settings. That software is licensed, not owned so by you altering verzion, or whoevers, software you are infringing on their copyright.

  4. Yet another brainless decision made by someone who doesn’t take future events into consideration. I think sooner or later a company is going to come out and just make really kick ass phones that can use any carrier by default. Might be difficult to do but I think it would be really worth it.

  5. For me is simple. I bougth a phone, so phone is mine. If it’s mine, i can do what i want with it. Even if a drop into a lake, or burnt it. It’s my f*cki** phone!!xD