In a matter of hours, the House is expected to vote on a bill that would legalize cell-phone unlocking — the process of releasing a mobile device from one carrier's network so that customers can use it on another. The idea has bipartisan support, but some Democrats are now waging a last-minute battle to stop the bill after its author, House Judiciary Committee Chairman Rep. Bob Goodlatte (R-Va.), unilaterally changed the bill in what critics say was a "secret" maneuver.
Under a 1998 copyright statute, people who unlock their phones without their carrier's permission could face stiff penalties, including jail time, for doing so. Although the wireless industry recently made several commitments to tell customers when they'd be eligible for carrier-sanctioned unlocking, consumer advocates like the Electronic Frontier Foundation (EFF) argue you shouldn't need to go through your network operator to unlock. They also say that third parties should be allowed to unlock multiple devices in bulk — the better to facilitate sales of used phones.
The wireless industry, meanwhile, has opposed the idea of bulk unlocking.
"In its 2010 decision, the Copyright Office authorized unlocking by individuals but precluded bulk unlocking," said Jot Carpenter, the vice president of government affairs for the trade group CTIA. "So to the extent that H.R. 1123 is an effort to restore the status quo as it existed prior to the 2012 decision, the legislation should retain the prohibition on bulk unlocking. Except for those engaged in large-scale subsidy arbitrage or fencing stolen devices, this should not be controversial, nor should it in any way impair an individual's ability to unlock his or her device at the completion of a term of service or sooner according to individual carrier practices."
The debate over bulk unlocking is what's behind the current spat between Goodlatte and lawmakers who've abandoned the bill. On Tuesday, Reps. Anna Eshoo (D-Calif.) and Zoe Lofgren (D-Calif.) announced they'd recruited Reps. Jared Polis (D-Colo.) and Thomas Massie (R-Ky.) in opposing the change in language. The new bill prohibits bulk unlocking explicitly, with an added paragraph that reads:
Sec. 2 (c)(2): NO BULK UNLOCKING.—Nothing in this subsection shall be construed to permit the unlocking of wireless handsets or other wireless devices, for the purpose of bulk resale, or to authorize the Librarian of Congress to authorize circumvention for such purpose under this Act, title 17, United States Code, or any other provision of law.
Democrats are furious with Goodlatte for making the change after the bill had already been approved by the full judiciary committee.
"After this bill was marked up and reported out of committee, a new section was added to the bill without notice to or consultation with us," wrote Lofgren in a letter to colleagues Monday. "It is sad that the bipartisan consensus reached during mark-up in the Judiciary committee to improve the law has been destroyed by a secret decision of the majority after the bill was reported out."
Goodlatte intends to bring the bill to the floor without giving other members an opportunity to roll back the edits, using a common parliamentary tactic to expedite the bill's passage. Known as suspension of the rules, the move will limit the amount of debate on the bill to 40 minutes and ban all amendments. That comes at a slightly higher cost, however: a two-thirds majority is needed for approving the legislation.
Two weeks ago, Goodlatte's bill was added to the list of bills to be voted on suspension; the list is essentially a shortcut for relatively uncontroversial legislation. Since then, however, the bill has proved anything but. A House Democratic aide said Goodlatte's staff rebuffed efforts to soften the language on bulk unlocking; a spokesperson for Goodlatte did not immediately return a phone call and e-mail requesting comment Tuesday.
Suspending the rules is a perfectly routine procedural tactic when dealing with legislation that isn't controversial, which is why Goodlatte's use of the tactic to push through this particular change is unusual.