What a new law about cellphone unlocking has to do with coffee, cars and consumer freedom

July 28, 2014

So a bill allowing cellphone unlocking is headed to the president's desk. President Obama has pledged to sign the legislation, giving relief to the more than 114,000 people who signed a White House petition calling for more progressive rules on cellphone use. Now what?

The answer is a much wider battle in Congress over not only cellphone unlocking but also the underlying aspects of copyright law that made it an issue in the first place. In the coming months, expect to hear a lot about something called "circumvention"; according to a House Judiciary Committee aide, lawmakers are going to take a specific look this fall at the Copyright Act's provisions that presume cellphone unlocking and similar activities to be illegal by default.

The results of that fight, advocates say, will likely shape the future of all technologies involving intellectual property — ranging from self-driving cars to media and entertainment to the Internet-connected home.

In the context of cell phones, circumvention involves bypassing the controls that a wireless carrier has placed on a phone so that the device can't be used with a different network. What the rest of us might call "cellphone unlocking" is vitally important for anyone who's tried to switch carriers — for a trip abroad, for instance, or to another service provider here at home. Cellphone unlocking makes buying a whole new device unnecessary when switching carriers.

For the past couple years it's actually been illegal to unlock your cellphone without first asking permission from your wireless carrier — something you could only do, by the way, at the end of your contract. The new bill passed by Congress overturns the government decision that made unlocking illegal, but policy experts say this is just a temporary fix. Here's why.

Every three years, the Library of Congress — which handles copyright issues for the government — has the opportunity to look at technologies designed to circumvent the locks manufacturers place on machines to protect their intellectual property. Cellphone unlocking is one example of this potentially law-breaking technology. Until recently, the Library of Congress generally concluded that cellphone unlocking deserved an exemption. But in 2012, it decided otherwise, opting not to renew the exemption.

So it's great for consumer choice that Congress passed this latest bill; it effectively reverses the Library of Congress' 2012 decision. But 2012 + 3 = 2015, meaning that the Library of Congress is going to revisit the question of cellphone unlocking again — you guessed it — next year. The LoC could decide all over again to make cellphone unlocking illegal, undoing the effects of the legislation that President Obama's about to sign.

To avoid a pointless back-and-forth, copyright reform advocates say the law that makes circumvention illegal should be changed. Some House lawmakers led by Rep. Zoe Lofgren (D-Calif.) support a bill that would do just that.

Circumvention keeps technology firmly in the manufacturers' hands, preventing customers or third parties from legally making their own repairs or doing the tinkering that has inspired many an inventor, according to the advocates. In November, the Electronic Frontier Foundation wrote about an emerging anti-circumvention system for automobiles being developed by Renault.

"Instead of selling consumers a complete car that they can use, repair, and upgrade as they see fit, Renault has opted to lock purchasers into a rental contract with a battery manufacturer and enforce that contract with digital rights management (DRM) restrictions that can remotely prevent the battery from charging at all," EFF wrote in a blog post.

It's not just cars that'll increasingly be subject to the circumvention provision of the Copyright Act. Hearing aids, e-books for the blind, Keurig coffee machines, even farm equipment — all these technologies are reliant on software to a growing degree. And the owners of that software have an interest in protecting it from theft or unsanctioned modification. So applying DRM may make a lot of sense if you're a business, but it makes life harder if you're a consumer. (Anyone who's grappled with DRM for music will probably agree.)

"Many manufacturers are realizing that if they put a digital chip in these devices, they're able to control them in a way that traditionally they haven't been able to do," said Derek Khanna, a copyright reform advocate who also pushed for the cellphone unlocking bill. "If a [Keurig] customer wants to use a different K-cup, they're potentially committing a felony."

Altering the circumvention provision of the Copyright Act could change all that. And the House Judiciary seems open to considering it.

 

Brian Fung covers technology for The Washington Post, focusing on telecom, broadband and digital politics. Before joining the Post, he was the technology correspondent for National Journal and an associate editor at the Atlantic.
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