FCC, White House to reconsider unlocking ban

The FCC says it will examine whether it has any authority to lift a legal ban on unlocking new smartphones without the issuing carrier’s permission. Meanwhile the White House says that in principle unlocking shouldn’t be illegal.

As we noted in January, the Librarian of Congress recently issued a clarification on how cellphone unlocking is covered by the Digital Millennium Copyright Act. That’s the legislation that says that in principle it’s a crime to produce software or hardware that can remove copy protection methods, even if those tools aren’t actually used for infringement.

The Librarian of Congress agreed to exempt phone unlocking methods from the act, but specifically noted the exemption only applied to phones sold before January 26 this year. By a process of elimination, lawyers can make a strong argument that unlocking technology for phones sold after that date must be covered by the DCMA.

Julius Genachowski, the Federal Communications Commission chairman, has now told Tech Crunch that “It’s something that we will look at at the FCC to see if we can and should enable consumers to use unlocked phones.” In theory it’s entirely up to the Librarian of Congress to decide what does and doesn’t get exemptions from the DCMA (a power designed to allow it to keep up with new technologies.) However, Genachowski says its possible the FCC might have some powers to intervene if it believes the implementation of the law is a threat to competition and innovation in the field of communications.

Meanwhile a petition on the White House website about the issue has reached 114,244 signatures at the time of writing. It calls on the Obama administration to eithe persuade the Librarian of Congress to reconsider, or to spearhead legislation that specifically classes unlocking as legal.

The number of signatures is significant as once more than 100,000 people register and sign a petition on the site, officials are committed to giving an official response (as happened in spectacular fashion over a petition calling for construction of a Death Star.)

That response has now come from R David Edelman, a senior advisor on internet, innovation and privacy issues. He said the White House administration believed that “the DMCA exception process is a rigid and imperfect fit for this telecommunications issue.” He also said:

The Obama Administration would support a range of approaches to addressing this issue, including narrow legislative fixes in the telecommunications space that make it clear: neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.

Edelman didn’t announce any specific measures right now, but did note that the FCC has an important role to play.

Whatever the FCC and White House decides to do, it should be noted that there’s still a major question about whether the de facto ban on unlocking would stand up in the event of a prosecution, if only because it certainly doesn’t seem consistent with the intention and spirit of the DCMA itself.