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White House Calls for Legalization of Some Cell Phone Unlocking

Posted in Intellectual Property, Telecommunications

The Obama administration issued a statement on Monday declaring that consumers not bound by service agreements should be able to unlock their cellular devices for use with other network providers.  In the official response to a petition on the We The People website, a senior White House advisor on the Internet, innovation and privacy agreed with more than 114,000 signatories that it makes “common sense” to allow users to unlock their smart phones and, potentially, tablets without incurring criminal or other penalties.

Cell phone unlocking can run afoul of the Digital Millennium Copyright Act (DMCA), which prohibits circumvention of technological protection measures that control access to a phone’s copyrighted software.  In 2006 and 2010, the Library of Congress had exempted the practice from the DMCA’s prohibition under its power to issue three-year exemptions to the statute.  But the 2012 exemptions put in place last fall do not extend to the unlocking of cell phones acquired after January 26th of this year.

The White House statement expressed disagreement with this policy, maintaining that cell phone unlocking protects consumer choice and fosters a competitive and innovative wireless market.  Also on Monday, FCC Chairman Julius Genachowski echoed these concerns and advised that the agency is examining the issue.

The Library of Congress responded with its own statement acknowledging that the implications of cell phone unlocking on telecommunications policy would benefit from further review, and the DMCA rulemaking process is not a substitute for broader public policy deliberations.   Industry trade group CTIA-The Wireless Association reiterated its position that a DMCA exemption for unlocking is not necessary, citing the “liberal, publicly available unlocking policies” of “the largest nationwide carriers.”  CTIA also noted that unlocked phones are “freely available” in the marketplace, albeit not at the substantially discounted prices offered to customers willing to sign a contract with a particular carrier.

Despite its support for the legalization of some cell phone unlocking, it is unclear whether the Obama administration can unilaterally effect this change.  The petition response advocated for “narrow legislative fixes in the telecommunications space” and consideration of the issue by mobile providers.  The White House also encouraged action by the FCC and stated that the President’s chief advisory agency for telecommunications and Internet policy, the Department of Commerce’s National Telecommunications and Information Administration (NTIA), will be formally engaging with the FCC in this space.  Whether these efforts will yield results remains to be seen, especially considering that NTIA’s recommendation to preserve the DMCA’s cell phone unlocking exemption went unheeded during last year’s rulemaking.