Phone Unlocking Becomes Illegal Tomorrow

unlockphone

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)