Feb. 7, 2016 SIGN IN | REGISTER

A Disconnect on Cellphone Unlocking Legislation

Martin Bureau/AFP/Getty Images

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.

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